'UI\IOSITIES  AND  i 

ODDrriES  OF  THE  LA1 


Franklin  Fjske  Heard 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


BMON  ROUGE 


K 
CURIOSITIES 


16&5 

OF 


THE    LAW   REPORTERS 


BT 


FRANKLIN   FISKE   HEARD 


SAN  FRANCISCO 
SmiNER  WHITNEY  &  CO. 

1885 


5'IZ 


Cu. 


Entered  according  to  Act  of  Congress,  in  the  year  1881, 

BY    FKANKLIN    FISKE    UKAKD, 

In  tlie  OflBce  of  the  Librarian  of  Congress,  at  Washington. 


? 


AxD  know,  my  son,  that  I  would  not  have  thee  believe 
that  all  which  I  have  said  in  these  books  is  law,  for  I  will 
not  presume  to  take  this  upon  me.  But  of  those  things 
that  are  not  law,  inquire  and  learn  of  my  wise  masters 
learned  in  the  law. 

Littleton. 


GG8J.45 


Most  Prefaces  are  effectually  apologies,  and  neither  the  Book 
nor  the  Author  one  jot  the  Ijetter  for  thcni.  If  the  Book  be 
good,  it  will  not  need  an  apology  ;  if  bad,  it  will  not  bear  one: 
for  where  a  man  tliinks,  by  calling  liimself  noddy  in  the  epistle, 
to  atone  for  shewing  himself  to  be  one  in  the  text,  he  does,  with 
respect  to  the  dignity  of  an  author,  but  bind  up  two  fools  in 
one  cover. 

Sir  Roger  D 'Estrange. 


CURIOSITIES  OF  THE  LAW  REPORTERS. 


R.  EGBERT  HALE,  the  father  of  the  Lord 
Chief  Justice,  gave  up  the  profession  of 
the  kw  from  scruples  of  conscience,  being 
sliocked  with   legal   fictions,  —  above  all, 

"  giving  colour  in  pleading,  which,  as  he  thought,  was 

to  tell  a  lie."  ^ 


YEAR  BOOK,  50  Edw.  III.  fol.  G,  pi.  12.  This 
was  a  case  in  whicli  a  question  arose  upon  a 
lady's  age  ;  her  coun.sel  pressed  the  court  to  have  her 
before  them,  and  judge  by  inspection  whether  she  was 
within  age  or  not.  But  "  Candish,  Justice,"  showing 
great  knowledge  of  female  character,  says :  "  111  n'ad 
nul  home  en  Engleterre  que  puy  adjudge  a  droit  deins 
age  on  de  plein  age  ;  car  ascun  femes  que  sont  de  age 
de  XXX  ans  voilent  apperer  d'age  de  XVIII  ans." 


1  Burael's  Life  of  Ilule,  p.  2. 


2  CURIOSITIES   OF 

IN  Jones  v.  ]\Iarsh,  Cas.  Temp.  Talb.  G4,  the  case  of 
Tarstow  v.  Weedon,  1  Abr.  Eq.  Cas.  149,  was 
cited.  But  the  Lord  Chancellor  said  that  Mr.  Vernon 
had  always  grumbled  at  the  determination  of  that 
case,  and  never  forgave  it  the  Lord  Macclesfield,  say- 
ing it  was  contrary  to  the  constant  practice  of  the 
court. 

-'IN 

BY  St.  Geo.  IV.  ch.  71,  it  is  enacted  that  "  If  any 
person  or  persons  shall  wantonly  and  cruelly 
beat,  abuse,  or  ill-treat  any  horse,  mare,  gelding,  mule, 
ass,  ox,  cow,  heifer,  steer,  sheep,  or  other  cattle,''  such 
person  or  persons  are  made  liable  to  a  penalty  not  ex- 
ceeding £5,  nor  less  than  lO.s.  In  Ex  parte  Hill,^ 
.Starkie  and  Holroyd  contended  before  Bayley,  J.,  that 
the  bull  was  included  in  the  statute  under  the  term 
"  other  cattle."  Curwood,  contra,  argued,  that  it  was 
a  rule  in  the  construction  of  Acts  of  Parliament,  that 
where  there  was  an  enumeration  beginning  with  the 
lower  degrees,  and  general  words  embracing  others 
ejusdem  generis  at  the  end,  these  general  words  did 
not  include  a  superior  degree  which  was  not  named 
in  the  Act ;  and  he  cited  the  case  of  the  Archbishop 
of  Canterbury ,2  where  it  was  held,  on  the  statute  13 
Eliz.  ch.  10,  which  mentions  deans  and  chapters, 
parsons  and  vicars,  and  all  other  2}ersons  whatsoever 
having  spiritual  promotion,  that  tlie  words  did  not 

1  3  C.  &  P.  225.  2  2  Rep.  40. 


THE  LAW  REPORTERS.  3 

extend  to  bishops,  a  superior  order,  who  were  not 
named  therein ;  and  he  contended,  therefore,  that  as, 
in  the  statute  in  question,  the  enumeration  began 
with  ox,  cow,  and  heifer,  omitting  bull,  and  concluded 
with  other  cattle,  it  did  not  include  a  bull,  the  bull 
and  the  bishop  standing  in  pari  statu  with  reference 
to  the  words  of  those  statutes  respectively. 


THE  books  contain  the  maxim,  Via  trita,  via  tuta. 
I  do  not  know  that  this  has  yet  been  alleged  as 
a  reason  for  not  rei^airing  a  highway.  But  it  would 
make  as  good  a  defence  as  many  I  have  heard."  ^ 


IX  ^Farch  on  Slander,  A.  D.  1648,  it  is  said,  with 
reference  to  the  encouragement  of  actions  of  slan- 
der, "Though  the  tongues  of  men  be  set  on  fire,  I 
know  no  reason  wherefore  tlie  law  should  be  used  as 
bellows  to  blow  the  coals." 


THE  Star  Chamber  decided  that  they  might  pun- 
ish the  undue  preparation  of  witnesses,  though 
their  testimony  be  tinie.^ 

1  Scintillae  Juris  P-  l'J3.  2  Dnrcy  f.  Lci^li,  HolmH,  324. 


CURIOSITIES   OF 

-\l  JUSTICE  CKOMrTOX  recently  i  gave 
tin's  brief  description  of  Sir  John  Fenwick's 
Case :  ^  "  The  House  of  Commons  were  unable  to  im- 
peach Sir  John  Fenwick  of  liigh  treason  because  there 
was  only  one  witness  against  him,  the  other  having 
been  spirited  away;  but  they  and  the  Lords  passed  a 
bill  of  attainder  to  cut  off  his  liead  on  tlie  evidence 
of  one." 

LORD  CA:\rrr.ELL  mentions  that  Lord  Erskine, 
when  Lord  Chancellor,  in  one  of  his  judgments 
observed:  "Lord  Coke  considers  the  Avord  'lunaticus' 
as  l)y  no  means  material,  classing  it  with  'aniens'  and 
'  demens,'  and  there  is  no  doubt  that  the  moon  has 
no  influence  over  lunatics ;  and  he  notices  that  Vesey 
Jun.,  the  reporter,  represents  this  as  a  point  decided 
by  Lord  Erskine,  and  writes  this  marginal  note :  '  In 
cases  of  lunacy,  the  notion  that  the  moon  has  an  in- 
fluence erroneous.' "  ^ 


THE  case  of  Lillcott  v.  Compton,  reported  by  Ver- 
non,* merits  commendation  for  the  brevity  with 
wliich  the  reporter  gives  the  whole  case  in  a  single 
line:  — 

"  Plate  shall  pass  by  a  devise  of  household  goods." 

1  Rcjrina  r.  Roves,  1  Best  &  Smith,  p.  324. 

2  13  Howell  State  Trials,  538. 

8  Cranmer,  Ex  parte,  12  Ves.  445,  450. 
4  Vol.  II.  p.  638.    60  Penn  State  Rep.  223. 


THE  LAW  REPORTERS.  5 

"~PEPOPkTS  and  Pleas  of  Assizes  atYorke,"  by 
-Lt  John  Clayton,  is  the  title  of  a  very  thin  duo- 
decimo published  in  1651.  "  If  this  book,"  writes  Mr. 
Allibone,  "  will  do  all  that  ^Ir.  Clayton  promises  for 
it,  we  should  suppose  that  our  friends  the  lawyers 
would  insist  on  its  immediate  republication." — "You 
may  see  here  how  to  avoid  a  dangerous  jury  to  your 
client,  what  evidence  best  to  use  for  him,  how  to 
keep  the  judge  so  he  override  you  not ;  so  that,  if  it  be 
not  your  own  fault,  —  as  too  often  it  is  for  fear  of 
favor,  —  the  client  may  have  his  cause  so  handled 
as,  if  he  be  plaintiff,  he  may  have  his  right,  and  if  de- 
fendant, moderately  punished,  or  recompensed  for  his 
vexation ;  and  such  pleaders  the  people  need."  — 
Preface. 

%\ 

CERTATX  rules  of  evidence  which  are  noM'  con- 
sidered fundamental,  appear  to  have  been  alto- 
gether unknown  in  the  seventeenth  century.  In  the 
trial  of  Mr.  Hawkins,  a  clergyman,  for  stealing  money 
and  a  ring  from  Henry  Larimore,  in  September  1668, 
Lord  Hale  admitted  evidence  to  show  he  had  once 
stolen  a  pair  of  boots  from  a  man  called  Chilton,  and 
that,  more  than  a  year  before,  he  had  }>icked  the 
pocket  of  one  Noble.  In  summing  uj),  Lord  Hale 
said,  after  referring  to  the  cases  of  Chilton  and  Xoble  : 
"  Tliis,  ii'  true,  wouM  render  tlie  prisoner  nuw  at  the 
bar  obnoxious  to  any  jury."  ^ 

1  6  Howoll  State  Trial",  035. 


6  CURIOSITIES  OF 

SAUNDERS  thus  concludes  his  report  of  tlie  case 
of  the  Dean,  etc.  of  Windsor  v.  Gover :  ^  "  Sed 
non  allocatur.  For  this  fault  alone  judgment  was 
given  against  the  defendant  by  Twisdeu,  liaynsford, 
and  Morton,  Justices  (Kelynge,  Chief  Justice,  being 
absent),  who  said  that  the  plea  in  this  point  was  alto- 
getlier  insensible.  But  I  believe  their  principal  reason 
was,  because  they  would  not  determine  the  matter  of 
law." 

LORD  JUSTICE  KNIGHT  BRUCE,  at  the  con- 
clusion of  the  argument  of  a  case  containing  a 
long  statement  of  facts,  summed  them  wp  in  ten  lines, 
and  concluded  thus  :  "  This  is  the  whole  case,  as  it 
appears  to  me,  spread  as  it  has  been,  and  as  lawyers 
do  spread  it,  and  as  lawyers  sometimes  cannot  help 
spreading  it,  over  a  multitude  of  sheets  of  paper."  ^ 


THE  statute  1  Edw.  II.  enacts  that  a  prisoner 
who  breaks  prison  is  guilty  of  felony  ;  but 
if  the  prison  be  on  fire,  this  is  not  so,  "for  he  is 
not  to  be  hanged  because  he  would  not  stay  to  be 
burnt."  ^ 

1  2  Saund.  305  c,  Gth  cd. 

2  In  re  The  German  Mining  Co.,  19  Eng.  Law  &  Eq.  Rep.  594,  595. 
8  Plowden,  13. 


THE  LAW  REPORTERS.  7 

STYLE,  the  reporter,  from  his  own  account,^  would 
seem  to  have  been  careful  about  what  he  put 
into  his  book  as  decided.  In  one  case,^  after  men- 
tioning that  Chief  Justice  Glyn  "  argued  long,  much 
to  the  same  effect  as  formerly,"  he  apologizes  for  not 
giving  his  argument,  by  saying  that,  "  having  taken 
cold,"  he  could  not  "  distinctly  hear  him."  He  does 
not,  however,  make  any  excuse  in  the  case  of  Weld 
V.  Rumney,^  where  he  reports  an  argument  as  made 
by  Twisden,  at  the  Bar,  in  1650,  which  Twisden  him- 
self, when  on  the  Bench,  about  twenty  years  after- 
wards, said,  was  "not  one  word  of  it  true."* 


SIR  CRESS^\T:LL  LEVINZ,  Attorney-General  of 
Charles  II.,  gave  an  opinion,  as  law  officer  of  the 
Crown,  upon  the  mode  of  trying  the  question  whetlier 
certain  imported  "earthenwares  be  painted  or  not"; 
and  tlie  granting  of  a  monopoly  for  "  a  new  invention 
of  making  black  pepper  white."  ^ 

LORD  BACON,  long  ago,  pointed  out  that  "  more 
doubts  rise  upon  our  Statutes,  which  are  a  text 
law,  than  upon  the  Common  Law,  which  is  no  text 
law." 

1  Style,  470. 

2  Tlie  rrotcctor  r.  Buckner,  Style,  p.  470. 

«  Styl..-,  318.  <  1  Mod.  29G. 

'  2  (Jhalniers'B  Opioions,  284,  320. 


8  CURIOSITIES   OF 

IT  is  recorded  ttf  the  saints  of  the  rtcpuhlic,  that, 
in  reciting  the  Lord's  Prayer,  they  woultl  never 
say  "  Thy  kingdom  come,"  but  always  "  Thy  coni- 
monwealtli  come."  From  a  similar  spirit,  prolxihly, 
though  with  better  sense,  the  Court  of  King's  Bench 
was  styled  during  the  time  of  Style's  and  Aleyn's 
Eeports  the  Upper,  or  Public  Bench.^ 


"  A  CCOPDIXG  to  the  best  English  writers,"  said 
-^-J^  Baron  Alderson,^  "  the  word  '  inventory  '  in- 
cludes a  description  of  a  person  as  well  as  of  those 
parts  of  liis  dress  or  other  matters  which  are  particu- 
larly specified.  Thus  Shakespeare  sjieaks  of  a  lady 
being  inventoried  :  '  I  will  give  out  divers  schedules 
of  my  beauty :  it  shall  be  inventoried,  and  every 
j)article  and  utensil  labelled  to  my  will.' "  ^ 


IX  "  The  Epistle  to  the  Reader,"  the  editor  of  Golds- 
borough,  in  1653,  while  language  was  yet  more 
nervous  than  polite,  says  :  "  For  thy  further  satisfac- 
tion know,  that  thou  hast  not  here  a  deformed  brat, 
falsely  fathered  upon  the  name  of  a  dead  man,  —  too 
usual  a  trick  played  by  the  subtile  gamester  of  this 
serpentine  age." 

1  For  this  passage,  I  am  indebted  to  Mr.  Wallace.      The  Reporters, 
200,  3d  ed. 

2  Taylor  ».  Rullen,  5  Exch   p.  786. 
*  Twelfth  Night.   Act  I.   Scene  5. 


THE  LAW  REPORTERS.  9 

IX  a  recent  case  iu  the  House  of  Lords/  counsel 
argued  thus :  "  It  is  ditticult  to  suppose  any 
species  of  profits  which  the  phrase  '  certain  and  un- 
certain profits'  would  not  comprehend.  Like  Sinclair's 
■well-known  division  of  sleeping  into  two  sorts, 
namely,  sleeping  with  or  sleeping  without  a  nightcap, 
it  would  seem  to  exhaust  the  subject." 


IX  1835  David  Gibbons,  "  Esquire  of  the  Middle 
Temple,  Special  Pleader,"  published  "  A  Treatise 
on  the  Law  of  Limitation  and  Prescription."  This  is 
the  motto  on  his  title-page  :  — 

"  My  Galli-gaskins,  that  have  long  withstood 
Tlie  winter's  fury,  and  encroaching  frosts 
By  Time  subdued  (what  will  not  Time  subdue  ?)  " 

J.  Phillips's  Splciidid  Shilling. 


^ 


LOUD  ELLP:XB0R0UGH  was  puzzled  to  decide 
wliether  the  letter  "  s  "  was  a  fatal  variance  in 
this  case:  A  declaration  alleged  that  the  defendants, 
a  partnership  firm,  made  a  bill  of  excliange,  "  tlieir 
own  hond.i  being  thereto  subscribed."  The  (blficulty 
was  that  tlie  word  "  hand  "  was  in  tlie  phual.  lUit 
lie  refused  to  nonsuit.^ 

1  Repfon  r.  Ilodfj-jon,  3  llouso  of  fiords  Cases,  p.  79, 
3  Jones  r.  Muri4,  2  Cunipb.  306. 
1* 


10  CURIOSITIES   OF 

"TTT'HEN  Littleton  prayed  judgment  in  a  quare 
VV  iuipedit,  Year  Book,  Mich.  35.  Hen.  VI.,  Prisot, 
Chief  Justice,  protested  :  "  I  marvel  miglitily  that  you 
are  so  hasty  iu  this  matter  ;  for  it  is  a  weighty  matter  ; 
and  I  have  seen  similar  matters  pending  for  t\velve 
years  ;  and  this  matter  has  been  pending  only  three 
quarters  of  a  year." 


TO  his  report  of  the  case  of  ^^^leatley  v.  Lane,^ 
Saunders  appends  this  characteristic  "note" :  "It 
was  argued  twice,  and  much  debated,  and  I  believe  is 
now  settled  :  but  the  conveniences  or  inconveniences 
which  may  follow  are  not  yet  known." 


IN  the  Liber  Assissarum,  p.  177,  is  a  case  in  which 
Thomas  de  Setone,  one  of  the  judges  of  the 
Common  Pleas,  in  30  Edw.  III.  recovered  damages 
from  a  woman  for  calling  him  "  traitor,  felon,  and 
robber  "  in  tlie  public  court. 


IN  a  case  in  4  Leonard,  198,  "  a  point  of   law  is 
agreed  by  the  court,  and  athrmed  by  the  clarks."  ^ 

1  1  Saund.  219. 

2  Compare  Bacon,  Kssay  LVI.  "  Of  Judicature  " :  "  An  ancient  clerk, 
skilful  in  precedents,  wary  in  proceedings,  and  understanding  in  the 
business  of  the  court,  is  an  excellent  finger  of  a  court;  and  doth  many 
times  point  the  way  to  the  judge  himself." 


THE  LAW  REPORTERS.  H 

PLOWDEX  says  the  reporters  deliberated  iipoii 
doubtful  resolutions.  If  the  progeny  were 
rickety,  or  likely  to  prove  mischievous,  they  smoth- 
ered it.  It  is  matter  of  regret  that  a  similar  course  is 
not  pursued  by  the  reporters  of  the  present  day.  If 
it  were,  the  "  books  of  Eeports  "  would  be  materially 
reduced  in  size. 


THE  judgment  in  a  very  recent  leading  case  ^  in 
tlie  Court  of  Exchequer  Chamber  concludes 
thus  tersely :  "  In  the  result  we  come  to  the  conclu- 
sion that  the  case  of  the  plaintiff,  so  far  as  it  rehes  on 
authority,  fails  in  precedent ;  and,  so  far  as  it  rests  on 
principle,  fails  in  reason." 


A  widow  shall  have  house-room,  and  meat,  and 
drink  in  common  for  forty  days;  but  she  may 
not  kill  a  bullock  within  those  forty  days  after  the 
death  of  her  husband,  in  which  time  her  dower  ought 
to  be  a.ssij;ned  her.^ 


ACCOPtDIXG  to  Bracton's  description  of  arson^ 
this  crime  wa.s  committed  "  when  any  one  from 
turbulent  sedition  wickedly  and  feloniously  made 
a  conflagration."  ^ 

1  Rcdlmml  r.  Midland  Railway  Company,  9  nf"st  &  Sniitli,  M^. 
a  Noy  Maxims,  27.  «  Cli.  XXIV.  fol.  M. 


12  CURIOSITIES  OF 

THERE  is  a  celebrated  passage  from  one  of  Lord 
Plunket's  speeches,  relative  to  the  Statutes  of 
Limitation.  "  If  time,"  says  his  lordship,  "  destroys 
the  evidence  of  title,  the  laws  have  wisely  and  hu- 
manely made  length  of  possession  a  substitute  for 
that  which  has  been  destroyed.  He  comes  with  liis 
scytlie  in  one  hand  to  mow  down  the  muniments  of 
our  rights ;  but  in  his  other  hand  the  law-giver  has 
placed  an  hourglass,  by  which  he  metes  out  inces- 
santly those  portions  of  duration  which  render  need- 
less the  evidence  that  he  has  swept  away."  This 
passage  has  been  variously  rendered  in  different  pub- 
lications. In  the  case  of  Malone  v.  O'Connor,^  Chan- 
cellor Napier  cited  it  as  follows :  "  Time,  with  the 
one  hand,  mows  down  the  muniments  of  our  titles  ; 
with  the  other,  he  metes  out  the  portions  of  duration 
which  render  these  muniments  no  longer  necessary." 
This  version  is  prol^ably  more  accurate  than  any  other, 
as  it  was  furnished  to  the  Chancellor  by  one  of  the 
counsel  in  the  quare  impedit,  on  the  trial  of  which 
Lord  Pluuket  made  use  of  the  imagery  in  his  address 
to  the  jury.^ 


FE AE,  fraud,  and  flattery :  three  unfit  accidents  to 
be  at  the  making  of  a  will.^ 

1  Drury  Cases  in  Chanc.  Temp,  Napier,  644. 

2  'Statesmen  of  the  Time  of  George  HI."  by  Lord  Brougham,  3d 
Series,  p.  227  note.     1  Taylor  Ev.  §  67,  5th  ed. 

3  Noy  Maxims,  97. 


THE  LAW  REPORTERS.  13 

HAWKSHEAD,  in  his  Essay  on  Wills,  p.  335, 
relates  tliis  case :  "  I  was  once  in  the  court  of 
King's  Bench,  when  one  of  the  counsel  was  making 
a  motion  upon  an  affidavit  filled  with  matters  of  ac- 
count and  calculations  of  figures,  which  he  was  detail- 
ing to  the  judges,  who  rose,  and  one  of  them  said 
(interrupting  him).  This  court  does  not  sit  here  as 
accountants ;  and  they  retired." 


LORD  TENTERDEN  C.  J.  refused  an  amend- 
ment of  a  variance  which,  according  to  the 
marginal  note  of  the  reporter,  "  would  not  have  oc- 
curred if  common  care  had  been  taken  in  the  draw- 
ing of  the  declaration ; "  ^  thus  sacrificing  the  suitor 
for  the  sake  of  punishing  the  attorney. 


IN"  Croke  Temp.  Eliz.  is  this  case :  A  poor  man 
found  a  priest  too  familiar  with  his  wife,  and  be- 
cause he  spake  it  al)road  and  could  not  prove  it,  the 
priest  sued  him  for  defamation. 


A  FAMILIAR  maxim  is  thus  tersely  expressed : 
"  lie  that  liath  committed  ini([uity  shall  not 
have  equity."^ 

1  .Jelf  V.  Oriel,  4  C.  &  P.  22.  2  Francis  Muxlms,  5. 


14  CURIOSITIES   OF 

FEOM  tlie  rare  and  interesting  A^olume  entitled 
"Choyce  Cases  in  Chancery,"  ed.  1G72,  we  print 
a  few  of  the  "  Choyce  Cases."  As  an  exhibition  of 
Elizabethan  habits,  manners,  and  peculiarities,  they 
are  quite  instructive. 

COSTS  against  the  clerk  for  mistaking  tlie  sub- 
prena.  The  defendant  was  dismissed  for  want 
of  a  bill,  and  forty  shillings  given  him ;  whereupon  he 
bespake  tlie  subpoena  for  costs,  and  Kobert  Bailes, 
clerk,  made  the  subpoena  ad  comparend.,  which  being 
served,  the  other  appeared  and  got  costs,  both  which 
costs  were  discharged,  and  ordered  that  the  plaintiff 
may  have  a  subpoina  against  the  said  clerk,  Eobert 
Bailes,  for  the  costs.  Fairbanck,  plaintiff.  Domina 
Metham,  defendant.     Anno  21  et  22  Eliz.^ 


MAXTEL,  one  of  the  defendants,  maketh  oath 
tlmt  his  wife  hath  a  young  child  sucking  upon 
her,  without  whom  he  cannot  directly  answer.  And 
that  the  other  defendant  is  an  infant  under  the  age 
of  twenty-one  years.  Therefore  they  are  respited  for 
answer  until  Trinity  Term  next.^ 


SUTTOIsr,  plaintiff,  Eringto,  defendant,  a  suit  upon 
a  promise,  and  twelve  pence  accepted  in  consid- 
eration, referred  to  the  common  law.^ 

1  Choyce  Cases,  p.  133.  2  Jbid.  p.  120.  s  Ibid.  p.  140. 


THE  LAW  REPORTERS.  15 

PAEISHIOXEES  sue  their  parson  at  every  year's 
end  to  give  a  rye  loaf  and  a  red  herring.  The 
suit  was  on  behalf  of  the  parishioners,  as  well  rich  as 
Ijoor,  for  and  concerning  the  yearly  alms  or  distribu- 
tion supposed  to  be  due,  by  the  parson  of  the  said 
parish,  of  a  rye  loaf  and  a  red  herring  to  every  par- 
ishioner on  St.  Andrew's  Eve.  But  that  it  appears 
by  a  record  in  the  Exchequer,  setting  down  the  value 
of  the  said  parsonage,  that  there  is  13s.  4:d.  yearly  to 
be  distributed  in  victuals  at  the  same  time  to  the  ijoor 
of  that  parish,  but  not  to  the  gentlemen  and  men  of 
alilitif.  And  for  that  the  defendant  offered  to  give 
yearly  26  s.  Sd.  in  lieu  of  the  said  13  s.  4:d.  to  the  poor 
of  the  said  parish,  who  stand  in  need  thereof,  there- 
fore day  is  given  to  the  plaintiffs  to  show  cause  why 
they  should  not  accept  thereof,  or  be  dismissed.  And 
after  assent  40-s.  a  year  was  decreed  yearly  to  the 
poor.  Elmer  and  Smith,  Church-wardens  of  North- 
would  in  the  County  of  Norfolk,  plaintiffs;  Scot, 
parson,  of  the  same  town,  defendant.     Anno  24  Eliz.^ 

'•in 

THE  plaintiff  put  in  a  replication  of  two  skins 
of  parchment  of  frivolous  matter,  and  not  fit  to 
to  be  rejoined  unto,  of  purpose  to  put  the  defendant 
to  unnecessary  charges,  and  therefore  Master  Godfry, 
being  of  counsel  with  the  defendants,  desired  his 
client  might  not  be  compelled  to  put  in  a  rejoinder, 
but  that  they  may  go  to  commission  with  the  same, 
and  ordered  accordingly.^ 

1  Choyce  Cases  in  Chancery,  p.  155.  2  \hu\.  p.  157. 


16  CURIOSITIES   OF 

T}rE  slieriff  upon  an  attachment  returned  cepi 
corpiis  et  languidus  in  prisona.  Whereupon  a 
duces  tecum  was  awarded ;  and  thereupon  the  sher- 
iff returned  adhuc  languidus.  Forasmuch  as  Walter 
Williams  made  an  oath  that  the  defendant  neither 
at  the  time  of  the  return,  nor  now,  is  so  sick  but  that 
he  goeth  abroad,  therefore  the  sheriff  is  amerced  live 
pounds  for  his  false  retm^n.^ 


LOED  CAMPBELL  in  liis  "  Life  of  Lord  Lynd- 
hurst,"  thus  relates  how  a  case  in  the  House  of 
Lords,  involving  an  important  question,  was  decided  : 
"  In  the  case  of  Johnstone  v.  Beattie,^  a  great  difficulty- 
arose  from  our  being  equally  divided,  and  a  fifth  law 
lord,  who  did  not  usually  attend  the  hearing  in 
appeals,  was  called  in  to  make  a  majority.  A  domi- 
ciled Scotchman,  of  large  landed  estate  in  Scotland, 
without  any  property  in  England,  married  to  a 
Scotch  woman,  had  by  her  an  only  child,  a  daughter, 
for  whom,  before  his  deatli,  he  duly  appointed  tu- 
tors and  curators,  domiciled  in  Scotland,  who  were 
confirmed  by  the  Supreme  Court  in  Scotland,  and 
who  by  the  law  of  Scotland  were  entitled  to  the 
guardianship  of  her  person  and  the  management  of 
her  property.  Some  years  after  the  death  of  both 
parents,  she,  while  still  an  infant,  happened  casually 
to  be  in  England  ;  whereupon  certain  parties,  wishing 

1  Choyce  Cases  ia  Chancery,  p.  115.         2  lo  Clark  &  Flnnelly,  42. 


THE   LAW  REPORTERS.  17 

to  obtain  possession  of  her  and  to  supersede  the 
Scotch  tutors  and  curators,  who  had  acted  unexcep- 
tionably  in  the  guardianship  of  her  person  and  her 
property  since  her  father's  death,  filed  a  bill  in  chan- 
cery alleging  falsely  (as  was  admitted)  that  she  had 
property  in  England,  and  praying  that  one  of  them 
might  be  aj^pointed  her  guardian,  and  that  the  Scotch 
tutors  and  curators  should  account  to  the  English 
guardian  for  all  the  rents  and  profits  of  the  Scotch 
estates.  The  Yice-Chancellor,  the  facts  being  laid 
before  him,  made  an  order  to  that  effect,  and  this  was 
affirmed  by  Lord  Chancellor  Lyudhurst.  Upon  an 
appeal  to  the  House  of  Lords,  the  order  appeared  to 
Lord  Brougliam  and  to  myself  not  only  absurd,  but 
contrary  to  tlie  law  of  England ;  while  Lords  Lyud- 
hurst and  Cottenham  considered  the  proceeding  as  a 
matter  quite  of  course  and  highly  laudable,  although 
tliey  allowed  that  tlie  person  and  property  of  the 
infant  would  hencefortli  be  under  the  control  of  the 
English  guardian,  and  that  during  her  minority  she 
would  ncjt  without  liis  consent  be  allowed  to  marry 
or  to  return  to  lier  native  country.  Lord  Langdale, 
Master  of  the  liolLs,  being  called  in,  after  an  argu- 
ment in  his  licaring,  declared  himself  of  tlie  same 
oj)iiii()ii.  TIlih  was  a  most  lamentable,  hut  hy  no  means 
singular,  instance  of  tJtc  narrow-mindedness  of  Enrjlish 
lawyers.  Here  three  very  able  men,  competent  to 
form  a  sound  c(mclusion  upon  any  subject  to  wliich 
logical  reasoning  and  common  sense  are  to  be  a])plied, 


18  CURIOSITIES   OF 

were  satisfied  with  this  order,  because  it  is  hiid  duwn 
in  the  books  of  practice  that,  as  soon  as  a  bill  is  filed 
to  make  an  infant  a  ward  of  the  court,  the  infant  is 
a  ward  of  the  court,  and  a  guardian  ought  to  be  ap- 
pointed, —  so  that  any  foreign  child,  male  or  female, 
brought  to  England  for  a  few  weeks  or  days,  with  a 
view  to  health  or  education  or  amusement,  may  be 
made  a  ward  of  Chancery  and  imprisoned  in  England 
till  twenty-one.  I  did  not  much  wonder  at  Cotten- 
ham  and  Langdale  countenancing  such  nonsense,  as 
they  had  never  been  freed  from  the  trammels  of  the 
Equity  draughtsman's  office  in  which  they  learned  to 
draw  bills  and  answers ;  but  when  I  found  tliat  the 
masculine  and  enlightened  mind  of  Lyndhurst  did 
not  revolt  at  it,  I  was  filled  with  astonishment  as 
well  as  dismay.  The  truth,  I  believe,  was,  that  he 
had  committed  himself  by  affirming  as  Chancellor, 
more  suo,  without  much  considering  whether  the 
order  appealed  from  was  right  or  wrong." 


THE  commencement  of  the  preface  to  the  third 
volume  of  IModern  Reports,  p.  xiv,  is  curious : 

"Gentlemen,  —  All  human  laws   are   natural  or 

civil."     "This  puts  us  in  mind,"  says  a  very  recent 

A\Titer,  "  of  a  humorous  introduction  to  death,  which 

we  have  somewhere  read  :  — 

'  Death  is  common  to  all. 
It  occurs  but  once.'  "  ^ 

1  Woolrych  Lives  of  Eminent  Serjeants,  Vol.  I.  p.  97  note. 


THE   LAW  REPORTERS.  19 

IT  seems  that  counsel  liad  beeu  assigned  to  advise 
T\-ith  Algernon  Sidney,  although  they  were  not 
allowed  to  address  the  court.  When  Bamfield,  one 
of  these,  rose  as  amicus  curiai,  and  suggested  in 
arrest  of  judgment  that  there  was  a  material  defect 
in  the  indictment,  the  Lord  Chief  Justice  blandly 
observed,  "  We  have  heard  of  it  already ;  we  thank 
you  for  your  friendship,  and  are  satisfied."  lie  then 
proceeded  to  pass  sentence  of  death  upon  the  pris- 
oner.i 

THE  royal  fish  are  whales  and  sturgeons,  which, 
when  either  cast  ashore  or  caught  near  the  coast, 
belong  to  the  Crown.  Blackstone  notices  a  curious 
distinction  made  by  the  old  legal  authorities,  which 
is  that  tlie  whale  is  to  be  divided  between  the  King 
and  the  Queen,  the  King  taking  the  liead  and  the 
Queen  the  tail ;  the  reason  assigned  being,  that  the 
Queen  niiglit  Iiave  the  wlialebone  for  lier  Mardrol)e, 
although  in  fact  the  whalebone  is  found  in  the  head, 
and  not  in  the  tail.^ 


IX  Tremaine's  "  Placita  Coronjc,"  p.  201,  is  a  pre- 
cedent of  an  indictment  against  a  counsellor,  for 
betraying  his  client's  cause  and  taking  fees  of  the 
other  side. 

»  0  Howdl  .Sfntc  TrinN,  901. 

2  Forsyth  CoriHtitutioiiul  Law,  178. 


20  CURIOSITIES   OF 

IN  his  judgment  in  INIoens  v.  Heywortli,  ^  Baron 
Alderson  observed :  "  I  consider  that  if  a  j^erson 
makes  a  representation,  or  takes  an  oath,  of  that 
which  is  true,  if  he  intend  that  the  party  to  wliom 
the  representation  is  made,  should  not  believe  it  to  be 
true,  that  is  a  false  representation  ;  and  so  he  wlio 
takes  an  oath  in  one  sense  kucwing  it  to  be  adminis- 
tered to  him  in  another,  takes  it  falsely.  This  may 
be  illustrated  by  an  anecdote  of  a  very  eminent 
ambassador,  Sir  Henry  Wotton,  who,  when  he  was 
asked  what  advice  lie  would  give  to  a  young  dii)loma- 
tist  going  to  a  foreign  court,  said,  '  I  have  found  it 
best  ahvays  to  tell  the  truth,  as  they  will  never 
believe  anything  an  ambassador  says ;  so  you  are  sure 
to  take  them  in.'  Now  Sir  Henry  "Wotton  meant  that 
he  should  tell  a  lie.  This,  no  doubt,  was  only  said  as 
a  witticism,  but  it  illustrates  my  meaning." 


IN  Montriou  v.  Jefferies,^  Abbott  C.  J.  in  summing 
up  said :  "  No  attorney  is  bound  to  know  all  the 
law.  God  forbid  that  it  should  be  imagined  that  an 
attorney,  or  a  counsel,  or  even  a  judge,  is  bound  to 
knoAv  all  the  law." 

THEPiE  is  an  idiom   in   truth  Mhich   falsehood 
never  can  imitate.^ 

1  10  M.  &  W.  158,  159.  2  2  C.  &  P.  p.  116. 

3  Lord  Clianccllor  Napier  in  Low  v.  Holmes,  Druiy  Cases  in   Clianc. 
Temp.  Napier,  323. 


THE  LAW  REPORTERS.  21 

IN  Sims  V.  The  State,^  wliicli  was  an  indictment 
for  larceny,  the  court  charged  the  jury  thus : 
"  Gentlemen  of  the  jury,  if  you  believe  the  evidence, 
you  will  iind  the  defendant  guilty."  To  this  charge 
the  prisoner  very  properly  excepted.  The  court  then 
said  to  the  jury;  "  Go  along,  and  find  the  defendant 
guilt ij!'  On  error  the  judgment  was  reversed,  the 
Chief  Justice  saying,  "  The  remark  made  to  the  jury 
after  the  charge  was  given  was,  to  say  the  least  of  it, 
a  great  violation  of  judicial  propriety,  and  no  doubt 
had  an  influence  with  the  jury,  that  did  or  might  well 
Lave  prejudiced  the  prisoner."  AVe  think  no  one 
will  jjresume  to  c^uestion  this  conclusion  of  the 
learned  court. 


LOKD  IIAKDWICKE  says  2  that  Lord  Holt  him- 
self took  exceptions  to  the  indictment  in  the 
case  of  itex  v.  Keite,  ^  in  order  to  avoid  the  question 
whetlier  a  venire  de  novo  may  issue,  in  a  case  of 
felony,  for  a  defective  v6rdict.  * 


I 


« 


OlfD  IfOBAIlT  remarked  that  special  demurrers 
'  "  exist  tliat  law  may  be  an  art." 


'  43  .M:iliiiin:i,  33. 

-  I!cx  r.  ISiirriil;,'!',  3  I'.  Wins   p.  4'jO. 

3  IN-x  r.  Kcifc,  1  L.l.  Iliiyin.  p.  I  U. 

*  .Jmlfjincnt  in  Cmiipljcll  v.  The  {iuccii,  11  Q.  R.  p.  839. 


22  CURIOSITIES   OF 

ME.  JUSTICE  HUTTON  charged  the  grand  jury 
at  Xorthain])ton,  Avith  regard  to  slii])-iuoney. 
Thomas  Harrison,  a  clergyman  of  that  county,  fool- 
islily  taking  umbrage  at  this  charge,  and,  "  while  tlie 
courts  of  Common  l*leas.  King's  Bench,  and  Chancery 
were  sitting,  rushed  to  the  bar  of  the  Common  Pleas, 
in  the  presence  and  audience  of  the  justices  there  sit- 
ting," and  cried  out  in  a  loud  voice,  "  I  do  accuse  Mr. 
Justice  Hutton  of  high  treason."  He  soon  suffered 
for  his  temerity.  He  was  indicted  for  the  offence, 
and  was  fined  £5000  and  imprisoned,  and  required  to 
make  his  submission  in  all  the  courts  at  Westminster. 
The  only  point  of  the  case  which  does  not  tell  to  the 
credit  of  the  judge  is,  according  to  his  own  report,^ 
that  he  also  brought  an  action  for  damages  against 
Harrison,  and  recovered  £10,000.^ 


yX  "  The  Tractice  Unfolded  "  of  the  High  Court  of 
-L  Chancery,  pp.  31,  32,  ed.  1672,  are  two  cases 
which  are  models  of  accuracy  and  brevity  :  — 

"Warwick  Hospital  contra  Feilding,  JNI.  9.  Jac,  the 
Lord  Chancellor  Ellesmere  said  that  churches  and 
hospitals  lightly  go  down  by  trials  in  the  countr}^, 
therefore  stayed  by  injunction. 

Hill.  9.  Jac,  Duncumbe  contra  Randall,  8.  Actions 
at  law  for  one  cause.  Lord  Egerton :  This  is  barratry ; 
stay  them  all  by  injunction. 

1  Hutton,  131.  2  Cro-  Car.  503. 


THE  LAW  REPORTERS.  23 

LOED  riAY:\IOXD  thus  concludes  tlie  report  of 
tlie  case  of  the  Bishop  of  St.  David's  v.  Lucy, 
wliicli  was  a  case  of  prohibition  clearly  witliin  the 
jurisdiction  of  the  House  of  Lords  :  "  Xote,  that  Holt, 
Chief  Justice,  told  me,  that  it'  the  Lords  had  been 
of  opinion  that  the  prohibition  ouglit  to  have  been 
granted,  he  never  would  have  granted  it."  ^ 


^  r  I  ^IIE  widow  shall  have  all  her  apparel,  her  bed, 
-L  lier  copher,  her  chains,  borders,  and  jewels,  by 
the  lionourable  custom  of  the  realm,  except  her 
husband  unkindly  give  any  of  them  away.  Or  be  it 
in  deljt,  that  it  cannot  be  paid  without  her  bed,  etc. 
yet  she  shall  have  her  necessary  apparel.'^ 


IT  is  said  that  the  king  can  never  be  nonsuit ;  and 
dues  not  appear  by  his  attorney,  as  other  men  do, 
"  for  in  contemplation  of  law,"  says  Blackstone,  "  lie 
is  always  present  in  court."  ^ 


IX  Kx  parte  l^avis,*  tlie  agreement  hi  controversy, 
whicli  was  in  tlie  fonii  (if  a  bond,  was  designated 
by  the  Lfjrd  Chancellctr,  Lord  Westbury,  as  "an 
ingenious  piece  of  mechanism." 

1  1   \.i\   Rnym.  545,  8  Comin.  V..1  I.  \>.  "270. 

«  Ni.y  .Mnximfi,  108,  *  0  Jur.  N.  S.  859,  801. 


24  CURIOSITIES   OF 

THE  great  sinecure  of  Chief  Cleik  of  the  Court 
of  King's  Bench,  compensated  by  a  pension  of 
£9000  a  year,  falling  vacant.  Sir  John  Holt  granted  it 
to  his  brother  Roland,  and  the  question  arose  whether 
the  patronage  of  it  belonged  to  the  Chief  Justice  or 
the  King.  This  came  on  to  be  tried  by  a  trial  at 
bar  before  the  three  Puisne  Judges  and  a  jury.  A 
chair  was  placed  on  the  floor  of  the  court  for  Lord 
Chief  Justice  Holt,  on  which  he  sat  uncovered  near 
his  counsel.  It  was  proved  that  the  Chief  Justices^ 
of  the  King's  Bench  had  appointed  to  the  office  from 
the  earliest  times,  till  a  patent  was  gTanted  irregularly 
by  Charles  II.  to  his  natural  son,  the  Duke  of  Graf- 
ton ;  and  there  was  a  verdict  against  the  Cro"o^n, 
whicli  was  confirmed,  on  appeal,  by  the  House  of 
Lords.^ 


IiST  a  bastardy  case,  j\Ir.  Justice  Emery  speaks  of  a 
certain  statute  as  "an  experiment  to  do  some 
justice  to  an  unoffending  being,  brouglit  into,  the 
world  by  the  ardent  original  efficiency  of  man,  not 
under  the  sanction  of  the  marriage  covenant."  ^ 


SAVILE'S  REPOETS.  An  accomplished  legal  bib- 
liographer says  that  "  this  book  seems  to  be  pretty 
much  in  the  condition  of  Pope's  '  most  women,'  and 
to  have  'no  character  at  all.'  " 

1  BridffTTian   r.  Tlolt,  Shower  P.  C.  111.    Skinner,  354.    Regina  v. 
Suffolk,  18  Q.  B.  420. 

2  Woodward  i:  Shaw,  18  Maine,  308. 


THE  LAW  REPORTERS.  25 

IX  Wright  V.  Crump,^  Holt  C.  J.  states  the  case  of 
the  mayor  of  Hereford,  who  claimed  title  to  a 
house  in  Hereford,  where  a  court  was  held,  and  he  hy 
charter  was  sole  Judge  of  the  court.  In  order  to  recover 
the  house,  he  made  a  lease  of  it  to  A.,  that  A.  might 
bring  ejectment  before  him.  A.  did  so,  and  the 
mayor,  says  Lord  Holt,  "  in  effect,  was  judge  in  his 
own  cause,  and  he  gave  judgment  for  his  own  lessee  "  ; 
and  upon  complaint  in  this  matter,  in  the  King's 
^  Bench,  the  court  granted  an  attachment,  and  the 
mayor  was  laid  by  the  heels  ;  ^  though  it  is  said  by 
one  of  the  reporters,  "  he  got  off  the  easier  for  that 
he  had  Ijeen  an  old  cavalier."  ^ 


NO  wonder  that  Bacon  should  have  commended 
"  the  excellent  brevity  of  the  old  Scots  acts." 
Here  is  a  specimen,  an  actual  statute  at  large,  com- 
])r(jliensive,  and  worth  a  small  library  of  modern 
4atute-books,  if  it  was  duly  enforced :  "  Item,  it  is 
statute  and  ordained,  that  all  our  Sovereign  lord's 
lieges  l)eing  under  his  obeisance,  and  especially  the 
isles,  be  ruled  by  our  Sovereign  lord's  own  laws,  and 
the  common  laws  of  tlie  realm,  and  none  other  laws." 

1  2  1.(1.  Raym.  766.     1  Salk.  201.     6  Ciish.  332. 

2  To  "lay  by  the  lioels"  was  tlie  tcclinical  expression  for  coininittinf» 
to  prison.  The  Chiof  Ju.«ticc  says  to  KalstalT:  "  To  punish  you  by  the.  heels 
wouM  nmcMfl  tlie  attention  of  your  ears;  and  I  care  not  if  1  do  lieeouio 
■our  j)liysician."  —  Serrmd  Part  of  King  llvnry  I  \'.  Act  I.  Si'oiic  2. 

»  7  .Mod.  1.    7  Mass.  200. 
2 


26  CURIOSITIES   OF 

READ  V.  Legard  was  an  action  brought  for  neces- 
saries supplied  to  the  defendant's  wife  at  a  time 
when  he  was  confined  in  an  asylum  as  a  dangerous 
lunatic.  In  the  course  of  the  argument,  Alderson,  B., 
inquired  of  the  plaintiff's  counsel  if  they  should  not 
apply  to  the  Court  of  Chancery  for  relief.  They  re- 
plied :  "  While  the  grass  is  growing,  the  steed  starves  ; 
while  the  Court  of  Chancery  is  deciding  the  cause,  the 
woman  might  starve."  The  court  decided  that  the 
action  could  be  maintained.^ 

M,' 

CHIEF  JUSTICE  SHEPLEY,  of  Maine,  thus  con- 
cludes an  elaborate  opinion  :  — 

"  Upon  the  construction  of  this  will  there  have 
been,  it  is  said,  different  opinions  and  doubts  among 
members  of  the  profession  for  thirty  years.  If  it  be 
so,  it  may  not  have  been  wholly  without  a  precedent ; 
for  Lord  Eldon  commences  his  opinion  in  the  case  of 
Earl  of  Eadnor  v.  Shafto,  11  Ves.  453,  with  the  re- 
mark :  '  Having  had  doubts  upon  this  will  for  twenty 
years,  there  can  be  no  use  in  taking  more  time  to 
consider  it.' 

"With  the  best  light  to  be  obtained  by  a  more 
limited  consideration  and  examination,  the  Court  has 
come  to  a  very  satisfactory  conclusion  respecting  the 
correct  construction  of  the  devise  to  Othiel  Pratt."  ^ 

1  15  Jur.  494.    See  Shaw  v.  Thompson,  IG  Pick.  198,  200. 

2  Pratt  V.  Leadbetter,  38  Maine,  17. 


THE  LAW  REPORTERS.  27 

SOUTHOLD  brought  an  action  against  Daunstou 
•  for  speaking  these  words  :  "  Soiitholcl  hath  been 
in  bed  with  Dorchester's  wife,"  whereby  he  lost  his 
marriage.  Serjeant  Bing  moved  unsuccessfully  that 
these  words  are  not  actionable ;  for  it  may  be  he  was 
in  bed  with  her  when  he  was  a  child,  she  being  his 
nurse,  or  it  may  be  that  her  husband  w^as  in  bed 
betwixt  them ;  and  words  shall  be  taken  in  mitiori 
sensu  when  any  construction  can  be  made  to  help  it. 
"  But  Jones  and  myself  conceived,"  says  Croke,  "  that 
such  foreign  intendments  as  have  been  alleged  shall 
not  be  taken,  but  it  shall  be  adjudged  ex  effectu 
dicendi,  which  is  here  to  hinder  him  of  his  marriage, 
as  it  is  now^  found  by  the  verdict ;  but  they  would 
advise  thereof.  And  it  was  afterwards  adjudged  for 
the  plaintiff.  ^ 

MR  JUSTICE  IlICHARDSOX,  in  delivering 
the  opinion  in  a  case^  relating  to  justices  of 
the  peace,  said :  "  Though  I  cannot  add  with  the  good 
Prior  (speaking  of  women)  — 

"  '  Lit  all  thfir  ways  be  unconfined,' 
yet  I  will  say  with  him, — 

"  '  15i;  to  their  faults  a  little  liliiid, 
And  to  their  virtues  very  kind.'  "8 

1  Southold  V.  DauHBton,  Cro.  Car.  209. 

2  Kcid  V.  Hf>od,  2  Nott  &  McCord,  j).  172. 

■'  Anotlier  roadiDg  of  this  jjO-ssago  wliich  is  quoted  from  "  An  Knglish 
I'adlock,"  is  tliis:  — 

"  lU;  to  lier  virtues  very  kind; 
Uc  to  her  faults  a  little  blind." 


28  CURIOSITIES   OF 

AN  old  decision  is  thus  stated  by  Hon.  William 
M.  Evarts;!  "The  Year-Book  contains  the 
following  story :  It  seems  that  somebody  had  been  so 
rude  as  to  call  a  clergyman  a  fool,  with  a  prefixed  ex- 
pletive, which  gave  point  to  the  stigma  wrung  from 
the  arsenals  of  theological  denunciation,  and  not  from 
the  technical  words  of  the  law.  Now,  in  an  action 
of  slander,  the  point  came  up  distinctly,  —  for,  with- 
out special  damage  proved,  we  hold  such  words  inju- 
rious only  when  they  injure  tlie  party  spoken  of  in 
his  profession,  —  and  the  court  held  that  it  was  not 
actionable,  for  it  did  not  injure  the  clergyman  in  his 
profession.  But  the  court  said  that  had  it  been 
of  the  lawyer,  or  of  the  medical  profession,  it  would 
have  been  otherwise.  Or,  as  the  old  law  French 
more  tersely  has  it,  Farce  que  on  peut  estre  bon  par- 
son et  gTand  fou ;  d'un  attorney  aliter." 


IN  Riddle  v.  Welden  ^  it  was  decided  that  the  goods 
of  a  boarder  are  not  liable  to  be  distrained  for 
rent  due  by  the  keeper  of  a  boarding-house.  Chief 
Justice  Gibson,  in  delivering  the  opinion  of  the  court, 
said  that  Falstaff  "  speaks  with  legal  precision  when 
he  demands,  '  Shall  I  not  take  mine  ease  in  mine 
inn  ? '" 

1  American  Law  Review,  Vol.  III.  p.  343. 

2  6  Wharton,  15. 


THE  LAW  REPORTERS.  29 

IX  a  recent  case  ^  the  Court  of  Queen's  Bench  were 
called  upon  to  give  a  judicial  construction  to  the 
^\"ord  "  team."  In  the  course  of  the  argument,  Mr. 
Justice  Blackburn  cited  Wordsworth's  use  of  the 
word  :  — 

"Yes,  let  my  master  fume  and  fret, 
Here  am.  I,  with  inj-  horses  yet ! 
My  joll}-  Team,  he  finds  that  ye 
^Vill  work  for  nobody  but  me." 

The  Waggoner,  Canto  I. 

And  also  Shakespeare's.  He  describes  Queen  Mab 
as  "  drawn  with  a  team  of  little  atomies."  ^  —  Romeo 
ami  Juliet.   Act  I.  Scene  4. 

And  Mr.  Justice  Crompton  cited  the  following  old 
epigram  :  — 

"  Giles  Jolt,  as  sleeping  in  his  cart  he  lay, 
Some  waggish  jiilfrers  stole  his  team  away. 
Giles  wakes  and  cries,  'What 's  here,  odds  Dickens  !  what  ? 
Why,  how  DOW,  am  I  Giles  or  am  I  not  ? 
If  he,  I  've  lost  six  geldings  to  my  smart ; 
If  not,  odd.s  buddikins  !  I  've  found  a  cart.'  " 

Elegant  Extracts,  Vol.  IV.  p.  296.     London,  1791. 

And  in  his  judgment  he  .saitl :  "  It  is  not  made  out 
to  my  satisfaction  that  the  word  '  team '  implies, 
Ijcsides  horses,  a  cart  or  vehicle  of  some  kind.  I 
think  that  according  to  the  modern  use  of  tlie  word 
it  does  not.     Thus  you  speak  of  tlie  team  a  man 

'   Duke  of  Miirlltorough  v.  Osborn,  6  Best  &  Sniitli,  07  (ISO I). 
-  It  wiis  Hai'J  ut  tlic  bar,  tlmt  "  u  team  of  counsel  means  a  number 
cf  couDBcl  following  ono  alter  another." 


30  CURIOSITIES  OF 

worked  a  coach  with,  and  if  tlie  word  'team'  were 
confined  to  lines  of  animals,  a  line  of  pigs  would 
afford  a  ludicrous  instance." 


BY  St.  Westminster  the  First,  3  Edw.  II.  A.  D. 
127G,  the  time  of  memory  was  limited  to  the 
reign  of  Kichard  I.  July  6,  1189.  "And  for  all  prac- 
tical purposes,"  said  "Mr.  Justice  Wilde,-'  "it  might  as 
well  be  reckoned  from  the  time  of  the  creation." 
But  in  1868  this  limitation  was  practically  applied 
in  a  well-considered  case  in  the  Court  of  Exchequer 
Chamber.  "  The  true  principle  of  the  law  applicable 
to  this  question,"  said  Kelly  C.  B.,  "is,  that  when 
a  fee  has  been  received  for  a  great  length  of  time,  the 
right  to  which  could  have  had  a  legal  origin,  it  may 
and  ought  to  be  assumed  that  it  was  received  as 
of  right  during  the  whole  period  of  legal  memory, 
that  is,  from  the  reign  of  Eichard  I.  to  the  present 
time,  unless  the  contrary  is  proved.  In  this  case, 
the  right  to  these  fees  may  have  had  a  legal  origin 
before  the  time  of  memor;; ;  and  the  evidence  that 
they,  have  been  taken  in  modern  times,  dming  a 
period  of  nearly  fifty  years,  leads  to  the  presumption 
that  they  were  lawfully  taken  in  the  time  of  liicliard 
I.  unless  the  payment  at  that  time  be  disproved."  ^ 

1  Coolidge  V.  Learned,  8  Pick.  p.  508. 

2  Bn-aiit  V.  Foot,  Law  Rep.  3  Q.  B.  497,  505.     See  the  admirable 
judgment  of  Mr.  Justice  Keating,  p.  512. 


2HE  LAW  REPORTERS.  31 

IX  1772  Lord  Mansfield  decided  that  there  was  no 
property  in  slaves,  and  in  answer  to  the  plea 
of  the  vast  property,  amounting  to  millions,  at  issue 
on  the  question,  he  uttered  the  memorable  maxim : 
"  Fiat  Justitia  ruat  Ccelum."  ^  In  1768,  in  an  equally 
celebrated  case,  he  made  use  of  the  same  maxim.^ 

Sir  Thomas  Browne  has,  in  his  "  Eeligio  Medici,"  ^ 
A.  D.  1642,  "Piuat  coeluni  fiat  voluntas  tua."  A  re- 
cent writer  *  says  the  phrase  used  by  Lord  Mansfield 
is  found  in  "Ward's  "  Simple  Cobbler  of  Aggawam  in 
America,"  the  first  edition  of  which  was  printed  in 
1645. 

w 

IN  The  Queen  v.  Tutchin,^  Powys  J.  and  Gould  J. 
having  delivered  opinions  one  way,  and  Powell 
J.  and  Holt  C.  J.  the  other,  the  report  concludes  with 
tlds  note :  "  Powys  J.  recanted  instanter,  and  Gould  J. 
hx'sitabat." 


F I  LOW'S  Case,  Year-Book,  12  Hen.  VIII.  3,  pi.  3. 
Eliot  J.  went  so  far  in  his  depreciation  of  dogs, 
as  to  lay  down  that  dogs  are  vermin,  and  for  that 
reason  the  Church  would  not  debase  by  taking  tithes 
of  them.* 

1  Somerset's  Case,  I^fH,  p.  17. 

2  The  King  t.  Wilkes,  4  Burrow,  p.  2562. 

3  Part  Second,  Sec.  XF. 

*  IJiirtlett.     Fiimiliar  QtiotationR,  p.  680,  6tli  ed. 

6  0  Mo.1.  p.  2f>7. 

8  1  Smitli  L  C.  ZM't,  6tli  London  ed. 


32  CURIOSITIES   OF 

PLEAS  in  abatement  "  should  be  certain  to  every 
intent,  and  be  pleaded  without  any  repugnancy." 
When  a  party  resorts  to  the  technicalities  of  the  law, 
he  must  take  special  care  that  he  omits  none.  "  Let 
him  who  objects  to  informality  in  the  proceedings  of 
his  opponents,"  remarks  Eichardson,  C.  J.,  in  Clarke 
V.  Brown,  6  N.  H.  435,  "  be  himself  in  correct  form." 
Neither  in  such  case  is  the  scriptural  injunction  in- 
applicable, — "  Wlierefore  let  him  that  thinketh  he 
standeth  take  heed  lest  he  fall."  —  i  Cor.  x.  12.^ 

IN  a  case  in  the  Year-book,  38  Edw.  IIL  pi.  14,  the 
House  of  Lords  commanded  the  Court  of  Com- 
mon Pleas  to  give  a  judgment.  The  Chief  Justice 
refused.  Afterwards,  in  his  absence,  the  others  com- 
plied, and  gave  judgment.  The  Court  of  King's  Bench 
afterwards  examined  the  proceedings  of  the  House  of 
Lords,  and  adjudged  them  void.^ 

IN  "  The  Practice  Unfolded  "  of  the  High  Court  of 
Chancery,  ed.  1672,  p.  41,  is  this  case  :  A  vexa- 
tious^plaintiff  in  forma  pauperis,  and  not  able  to  pay 
costs  upon  the  dismission,  hath  been  ordered  by  the 
Lord  Egerton  to  be  whipped,  upon  the  equity  of  the 
St.  23  Hen.  VIII.  cap.  15,  and  no  more  to  be  admitted 
in  formd  paujjeris. 

1  Getcliell  V.  Boyd.  44  Maine,  484. 

2  12  Mod.  p.  65. 


THE  LAW  REPORTERS.  33 

YEAE-BOOK,  Mich.  10  Hen.  VI.  fol.  8  b,  pi.  30 
(A.  D.  1431).  The  Prior  of  W.  brings  writ  on 
the  Statute  of  Labourers  against  a  chaplain  for  not 
chanting  the  mass.  Strange  ways  J. :  "  The  writ  is 
not  niamtainable  by  the  statute;  for  you  cannot 
compel  a  chaplain  to  sing  in  mass ;  for  tliat  at  one 
time  he  is  disposed  to  sing  it,  and  at  another  not; 
wherefore  you  cannot  compel  him  by  the  statute." 
This  case  was  commented  on  by  some  of  the  judges 
in  the  celebrated  case  of  Lumley  v.  Gye.^  The  plain- 
tiff, the  proprietor  of  the  Queen's  Theatre,  had  con- 
tracted with  Jolianna  "Wagner,  a  celebrated  opera- 
singer,  to  sing  in  the  theatre  for  a  certain  time,  with 
a  condition  tliat  she  should  not  sing  elsewhere  dur- 
ing the  term  without  the  plaintiff's  consent  in  Amting. 
The  question  was,  whether  the  plaintiff  could  main- 
tain an  action  against  the  proprietor  of  another 
theatre,  Avho  maliciously  procured  Miss  Wagner  to 
abandon  her  contract  entirely.  And  a  majority  of 
the  Court  of  Queen's  Bench  held  that  the  action 
would  lie.  The  judgment  was  delivered  in  June 
IS.").";.  In  the  previous  April  the  plaintiff  fded  a  lull 
against  Miss  Wagner,  to  restrain  her  from  singing  at 
Gye's  theatre.^  At  this  time  Lord  St.  Leonards  held 
the  Great  Seal.  His  lordship  deci»led  that  the  two 
jjositive  and  negative  stipulations  in  the  contract 
above  named  constituted  only  one  contract,  and  that 

J  2  F.l.  &  r.I.  210. 

2  LuiDley  V.  Wiigiipr,  1  De  Gcx,  Mncnnghtcn  &  Gonloii,  C04,  CIO. 
2»  0 


34  CURIOSITIES   OF 

the  court  could  not  enforce  performance  of  the  wliole 

contract.     "  It   is   true,"  said  the  astute  Chancellor, 

"  that  I  have  not  the  means  of  comjJcUing  the  lad/j  to 

sing ;  but  she  has  no  cause  of  complaint  if  I  compel 

her  by  injunction  to  abstain  from  the  commission  of 

an  act  which  she  has  bound  herself  not  to  do,  and 

thus,  possibly,  compel  her  to  perform  her  cngayement." 

\<^ 

IlSr  England,  the  celebrated  Ann,  countess  of  Pem- 
broke, liad  the  office  of  hereditary  sheriff  of  "West- 
moreland, and  exercised  it  in  person.  At  the  assizes 
at  Appleby,  she  sat  with  the  judges  on  the  bench.^ 

\w 

DEBITOEES  non  presumuntnr  donare.  "  Yet 
debtors  do  make  gifts,  and  large  ones ;  often 
giving  away  the  whole  of  their  estates.  I  have 
noticed  that  bankrupts  are  men  of  very  tender  affec- 
tions where  their  relations  are  concerned ;  and  they 
are  so  far  unprejudiced  that  they  oiiQXi  prefer  a  credi- 
tor."—  Scintillae  Juris,  p.  102. 

IN  case  for  words  which  imported  the  committing 
of  adultery  by  the  plaintiff  with  Jane  at  Stile,  the 
defendant,  in  mitigation  of  damages,  may  give  in  evi- 
dence, that  the  plaintiff  committed  adultery  witli  Jane 
at  Stile,  but  not  with  any  other  M-oman.^ 

1  Co.  Litt.  320  a,  note,  ]9th  ed. 

2  Smithies  v.  Dr.  Harrison,  1  Ld.  RajntJ.  727. 


THE   LAW  REPORTERS.  35 

LORD  COKE,  in  Ins  "Fourtli  Institute,"  com- 
menting on  the  jurisdiction  and  power  of  justices 
of  tlie  peace,  says,  "  It  is  sucli  a  form  of  subordinate 
government  for  the  tranquillity  and  quiet  of  the 
realm  as  no  part  of  the  Christian  world  hath  the  like, 
if  the  same  be  duly  executed."  Shakespeare's  picture 
of  a  justice  of  the  peace,  in  the  opening  scene  of 
"The  j\Ierry  Wives  of  Windsor,"  certainly  differs 
from  the  office  so  unduly  commended,  in  language  so 
extravagantly  flattering,  by  the  Lord  Chief  Justice. 
It  has  been  well  said  that  Shakespeare's  picture 
"  is  so  tnitliful  as  to  be  hardly  exaggerated  or  carica- 
tured. The  original  of  the  picture  is  confined  to  no 
aue." 


ACCORDING  to  the  memorandum  of  a  contem- 
poraneous reporter,  Mr.  Justice  Heath  refused 
kniglithood,  saying,  "  I  am  John  Heath,  Esquire,  one 
of  liis  Majesty's  Justices  of  the  Court  of  Common 
Bench,  and  so  will  die."  ^ 


A 


CHAIN"  of  authorities   Milton   calls    "a   par- 
oxysm of  cit;i(i(tns." 


1  And  Sliallow,  in  answer  to  l'.;iri|ol|)irs  inquiry,  "  Wliidi  is  Justiro 
Shallow?"  anHwerol,  "I  am  Robert  Sliallow,  sir;  a  jwor  csquiro  of  this 
roiinty,  ami  one  of  tin;  Kin^j'ti  justices  of  the  peace."  —  Stcviul  Purl  (if 
King  Henry  IV.  Act  III.  Scene  2. 


36  CURIOSITIES   OF 

IN  deciding  upon  the  validity  or  invalidity  of 
deeds,  courts  of  equity  act  upon  more  enlightened 
principles  than  courts  of  law ;  and  whenever  it  is 
shown  to  thein  that  any  person  by  donation  derives 
a  benefit  under  a  deed  to  the  prejudice  of  another 
person,  —  and  the  more  especially  so,  if  any  confi- 
dential or  fiduciary  relation  subsists  between  the 
parties,  — they  so  far  presume  against  tlie  validity  of 
the  instrument  as  to  require  some  proof,  varying  in 
amount  according  to  circumstances,  of  the  absence 
of  anything  approaching  to  imposition,  overreaching, 
undue  influence,  or  unconscionable  advantage.  For 
example,  if  a  deed  of  gift,  or  other  disposition  of 
property,  be  made  in  favor  of  a  husband  by  a  wife,  a 
court  of  equity  will  regard  the  matter  with  jealous 
suspicion,  and  will  either  set  aside  the  instrument 
as  conclusively  void,  or  wall  throw  upon  the  person 
benefited  the  burden  of  establishing,  beyond  all  rea- 
sonable doubt,  the  perfect  fairness  and  honesty  of  the 
entire  transaction.^  A  grotesque  attempt  has  been 
made  in  Ireland  to  extend  this  salutary  doctrine  to  a 
case  which  assuredly  its  framers  never  contemplated. 
A  woman,  while  living  in  adultery  with  a  married 
man,  had  in  the  ardor  of  her  affection  assigned  some 
of  her  projjcrty  to  secure  a  debt  which  was  owing  by 
her  paramour.  "Wlien  her  passion  cooled,  her  gener- 
osity seems  to  have  cooled  also ;  and  after  the  lapse 
of  a  short  period  she  had  the  hardihood  to  a]iply 

1  1  Taylor  Ev.  §  129. 


THE  LAW  REPORTERS.  37 

to  the  Court  of  Chancery  to  set  aside  her  assignment 
on  the  ground  of  undue  influence.  Her  prayer  was 
of  course  rejected,  the  court  holding  that  the  doctrine 
on  which  she  relied  for  relief  was  only  applicable 
when  some  lawful  relation  had  been  contracted  be- 
tween the  parties.^ 


yX  "The  Practice  Unfolded"  of  the  High  Court  of 
J-  Chancery,  p.  5,  ed.  1672,  is  this  ride  of  equity 
pleading  which  obtains  at  the  present  day :  — 

"  Xo  couucellour  ought  to  put  his  hand  to  any  bill, 
answer,  or  other  pleading,  unless  it  be  drawn,  or  at  least 
periLsed  by  himself  in  the  paper  draught,  before  it 
be  ingrossed,  and  they  are  to  take  care  that  the  same 
be  not  stuffed  with  repetition  of  deeds,  Avritings,  or 
records  in  hiec  verba ;  but  the  effect  and  substance  of 
so  much  of  them  only  as  is  pertinent  and  material  to 
\)Q  set  down,  and  that  in  Inief  terms,  without  long 
and  needless  traverses  of  points  not  traversable,  tau- 
toligies,  multiplications  of  words,  or  other  imperti- 
nencies,  occasioning  needless  prolixity,  that  the  an- 
rAcnt  brevity,  succiutness  in  bills,  and  other  pleadings 
may  l»e  restored  and  oljserved." 

And  on  ]j.  :>0  is  a  rule  of  practice  which  ought 
\a)  obtain  at  the  present  day:  — 

"The  councel  that  misinforms  the  court  in  his  mo- 
tions, or  moves  not  informing  the  former  order  in  the 

1  Ilargrcavo  v.  Evcrard,  0  Iri^h  Va\.  licp.  N.  S.  278. 


38  CURIOSITIES   OF 

cause,  liath  had  his  order  so  misgotten,  thereby  va- 
cated, and  costs  awarded  to  be  paid  by  himself  or  his 
client,  by  himself  if  it  lay  iu  1dm  to  have  informed 
himself  better,  or  else  by  the  client  who  misinformed 
his  coimcel,  and  wliile  this  course  was  used  little  Mas 
there  of  references  to  consider  of  the  truth  of  sucli  in- 
formations. The  councellor  in  respect  of  his  credit, 
and  the  client  for  fear  of  such  costs,  being  then  careful 
not  to  misinform  in  any  thing  which  they  were  sure  to 
hear  of  again  by  motion  of  the  adverse  party  to  the 
next  motion-day." 

MX 

THE  Supreme  Court  of  the  United  States  does  not 
consider  "  codes  "  to  be  the  embodiment  of  true 
progTess  ;  or  that  "  wisdom  will  die  "  with  those  that 
make  them.  With  reference  to  the  common  law  of 
Special  Pleading,  Mr.  Justice  Grier  observed :  "  This 
system,  matured  by  the  wisdom  of  ages,  founded  on 
principles  of  truth  and  sound  reason,  has  been  ruth- 
lessly abolished  in  many  of  our  States,  who  have 
rashly  substituted  in  its  place  the  suggestions  of 
sciolists  who  invent  new  codes  and  systems  of  plead- 
ing to  order.  But  this  attempt  to  abolish  all  species, 
and  establish  a  single  genus,  is  found  to  be  beyond 
the  power  of  legislative  omnipotence.  The  result  of 
these  experiments,  so  far  as  they  have  come  to  our 
knowledge,  has  been  to  destroy  the  certainty  and 
simplicity  of  all  pleadings,  and  introduce  on  the 
record  an  endless  wrangle  in  writing,  perplexing  to 


THE  LAW  REPORTERS.  39 

the  court,  delaying  and  impeding  tlie  administration 
of  justice."  ^  And  by  way  of  illustrating  the  absurd- 
ities into  which  such  a  course  had  actually  led,  the 
court  names  a  case  in  which  (at  the  end  of  a  chaos 
of  so-called  pleadings)  the  jury  gave  a  verdict  for 
8  1,200,  and  the  court  rendered  judgment  for  four 
negroes!^ 

SO^IETHIXG  more  than  the  ceremony  of  marriage 
was  necessary  to  give  the  wife  a  right  of  dower, 
by  the  laws  of  Xormandy.  "  C'est  au  coucher  que  la 
femme  gagne  son  douaire  "  —  "  il  faut  qu'elle  couche 
avec  son  mari  pour  acquirer  son  douaire  c'est  ce  qui 
donne  la  derniere  perfection  a  ce  droit."  ^ 


IX  Xoy,  48,  a  precedent  is  cited  in  these  words : 
"The  jurors  acquitted  a  prisoner  contrary  to 
their  evidence,  and  for  that  they  were  fined  and  im- 
prisoned, and  bound  for  the  good  behavior  of  the 
l»risoner  during  liis  life." 


IX  the  index  to  the   last  London  edition  (A.  D. 
18G7)   of  Smith's    Leading   Cases,  we   find    this 
title :  "  Eagle's  Eyes,  Court  will  not  always  look  with." 

1  McFaul  r.  numsey,  20  Ilownrd,  p.  525.   And  sco  the  cnustic  obson'si- 
tionsof  the  same  acute  jiulgc  in  Furni  c.  Tcsson,  1  Rhick,  315. 

*  I'rcfucc  to  the  Fourth  Kdition  of  Gould  on  I'lcmliiif;. 

•  Flaust,  Coutumc  dc  Nonnandie, 528,  cited  1  Washburn  on  Reiil  I'lop- 
erty,  107. 


40  CURIOSITIES   OF 

ON"  the  danger  of  admitting  presumptive  evidence 
of  death,  Lord  Langdale  was  in  the  liaLit  of  re- 
ferring to  a  very  singular  case,  which  happened  within 
his  own  knowledge  while  he  was  on  the  bench.  A 
sum  of  money  in  court  was  subject  to  a  trust  for 
a  particular  individual  for  life,  and  after  his  death 
was  to  be  divided  between  certain  parties.  These 
parties  petitioned  for  payment  of  the  fund  to  them, 
on  tlie  ground  that  the  individual  in  (question,  the 
tenant  for  life,  was  dead.  No  positive  evidence  could 
be  adduced  of  his  death ;  but  it  was  said  that  his 
death  must  be  presumed,  inasmuch  as  the  e^'idence 
showed  that  he  had  gone  abroad  some  twenty  or 
thirty  years  ago,  under  circumstances  of  diificulty, 
and  that  no  human  being  had  heard  any  tidings 
of  him  from  that  day  to  this. 

This  did  not  satisfy  Lord  Langdale,  and  he  desired 
the  case  to  stand  over,  intimating  that  if  further  evi- 
dence could  be  produced  to  corroborate  the  already 
strong  presumption,  he  would  attend  to  it.  Addi- 
tional affidavits  were  accordingly  filed,  after  the  lapse 
of  some  time,  and  the  case  then  appeared  so  strong 
that  he  made  the  order  for  division  of  the  fund  as 
prayed.  The  extraordinary  portion  of  the  case  re- 
mains to  be  told,  —  the  order,  when  drawn  up  accord- 
ing to  his  lordship's  directions,  was  carried  to  the 
proper  office  to  be  entered ;  and  the  clerk,  whose 
duty  it  wa.s  to  enter  it,  turned  out  to  be  the  very- 
individual  on  whose    presumed  death  the  order  for 


THE  LAW  REPORTERS.  41 

payment  ^\-as  made.  It  seems  that  in  early  life  he 
had  been  involved  in  scrapes  and  difficulties,  which 
led  him  to  fly  his  country,  and  to  keep  his  residence 
and  career  a  secret  from  all  his  relatives,  —  that 
he  had  returned  in  time,  under  a  fictitious  name, 
to  England,  where  he  at  length  obtained  a  situa- 
tion in  the  office  in  question,  but  without  making 
himself  known  to  any  one,  —  that  he  was- ignorant 
of  his  right  in  the  fund  in  question,  and  that,  but  for 
the  remarkable  accident  just  related,  he  would  have 
been  deprived  of  these  rights,  and  the  fund  would 
have  been  prematurely  given  over  to  persons  not 
then  entitled  to  it. 


ABOUT  the  year  1554,  Henry  VIII.  manumit- 
ted two  of  his  villeins  in  these  words,  which 
are  not  without  their  application  at  the  present  day : 
"  Whereas  God  created  all  men  free,  but  afterwards 
tlie  laws  and  customs  of  nations  subjected  some  under 
the  yoke  of  servitude,  we  think  it  pious  and  merito- 
rious with  God  to  manumit  Henry  Knight,  a  taylor, 
and  Herle,  a  Imsbandman,  our  natives,  as  being  born 
within  the  manor  of  Stoke  Clynnnysland,  in  our 
county  of  Cornwall,  together  with  all  their  goods, 
lands,  and  cliattels  ac([uir(!d  or  to  be  acquired,  so  as 
tlie  said  persons  and  their  issue  sliall  from  henceforth 
by  us  be  free  and  of  free  condition."  ^ 

^  Uarriiigton  on  the  Statutes,  p.  80C,  Cth  od. 


42  CURIOSITIES  OF 

THOUGH  evidence  addressed  to  the  senses,  if 
judiciously  employed,  is  obviously  entitled  to 
the  greatest  weight,  care  must  be  taken  not  to  push 
it  beyond  its  legitimate  extent.  The  minds  of  jury- 
men, especially  in  the  remote  provinces,  are  grievously 
open  to  prejudices,  and  the  production  of  a  bloody 
knife,  a  bludgeon,  or  a  burnt  piece  of  rag,  may  some- 
times, byexciting  the  passions  or  enlisting  the  sympa- 
thies of  the  jury,  lead  them  to  overlook  the  necessity 
of  proving  iii  what  manner  these  articles  are  con- 
nected -svith  the  criminal  or  the  crime  ;  and  they  con- 
sequently run  no  slight  risk  of  arriving  at  conclusions, 
which,  for  want  of  some  link  in  the  evidence,  are  by 
no  means  warranted  by  the  facts  proved.^  The  abuse 
of  this  kind  of  evidence  has  been  a  fruitful  theme  for 
the  satirist;  and  many  amusing  illustrations  of  its 
effect  might  be  cited  from  the  best  authors.  Shake- 
speare makes  Jack  Cade's  nobility  rest  on  this  founda- 
tion ;  for  Jack  Cade  having  asserted  that  the  eldest 
son  of  Edmund  Mortimer,  Earl  of  JNIarch,  "  was  by  a 
beggarwoman  stolen  away,"  "became  a  bricklayer 
when  he  came  to  age,"  and  was  his  father,  one  of  the 
rioters  confirms  the  story  by  saying,  "  Sir,  he  made  a 
chimney  in  my  father's  house,  and  the  hricJcs  are  alive 
at  this  day  to  testify  it ;  therefore  deny  it  not."  ^ 
Archbishop  Whately,  who  makes  use  of  the  above 
anecdote  in  his  diverting  "  Historic  Doubts  relative  to 

1  1  Taylor  Ev.  §  501. 

2  Part  Second  of  King  Henry  VI.  Act  IV.  Scene  2. 


THE  LAW  REPORTERS.  43 

Napoleon  Bonaparte,"  adds :  "  Truly  this  evidence  is 
such  as  country  people  give  one  for  a  story  of  appari- 
tions ;  if  you  discover  any  signs  of  incredulity,  they 
triumphantly  show  the  very  house  which  the  ghost 
haunted,  the  identical  dark  corner  where  it  used  to 
vanish,  and  perhaps  even  the  tombstone  of  the  person 
whose  death  it  foretold."  So,  in  the  interesting  story 
of  "  The  Amber  Witch,"  the  poor  girl  charged  witli 
witchcraft,  after  complaining  that  she  was  the  victim 
of  the  sheriff,  who  wished  to  do  "wantonness  with 
her,"  added,  that  he  had  come  to  her  dungeon  the 
night  before  for  that  purpose,  and  had  struggled  with 
her,  "whereupon  she  had  screamed  aloud,  and  had 
scratched  him  across  the  nose,  as  might  yet  be  seen, 
whereupon  he  had  left  her."  To  this  the  sheriff  re- 
plied, "that  it  was  Jiis  little  lap-dog,  called  Below, 
which  had  scratched  him  while  he  played  with  it 
tliat  very  morning,"  and,  ]ia\ing produced  the  doy,  the 
I  ourt  were  satisfied  ^^•ith  the  trutli  of  his  explana- 
tion.^ 

LOBD  :\r  AXSFIELD,  while  confessing  a  wish  for 
popularity,  added,  in  words  wliich  cannot  Iw  too 
often  (pioted,  "  But  it  is  that  popularity  which  i'ollows, 
not  that  which  is  run  after;  it  is  that  popularity 
which,  sooner  or  later,  never  fails  to  do  justice  to  the 
pursuit  of  noble  ends  liy  nolilc  means." ^ 

1  The  Aml)«r  Wif<:li,  trimslateil  In-  Lady  Dufl' Gordon,  pp.  78-80. 

2  The  King  r.  Wilken,  4  Burrow,  2002. 


44  CURIOSITIES  OF 

THE  case  of  Poor  v.  Poor,  8  N.  H.  307,  was  a 
libel  filed  by  a  wife,  praying  for  a  divorce,  on 
the  ground  of  extreme  cruelty  on  the  part  of  the 
husband.  Tlie  opinion  of  the  court  was  delivered  by 
Chief  Justice  Kichardson.  It  is  too  long  to  be  quot- 
ed at  length,  but  it  will  well  repay  a  perusal.  It  is 
graced  with  quotations  from  Hudibras  and  from  Virgil. 
The  Chief  Justice  says  :  "  Her  next  complaint  grows 
out  of  a  contest  between  them  with  respect  to  some 
wood,  in  August,  1833.  Her  story  is  tliat  she  sent  a 
little  girl  out  to  procure  some  wood  ;  that  Poor  met  the 
girl  at  the  door  and  told  lier  '  she  should  not ; '  that 
she  then  went  herself  for  the  wood,  and  as  she  went 
out  he  went  into  the  house.  When  she  returned  she 
found  the  door  fastened,  upon  which  she  threw  her 
wood  into  the  house,  through  the  window,  and  took  a 
crowbar  and  knocked  at  the  door  —  that  Poor  came 
out  in  a  great  passion,  and  using  very  profane  lan- 
guage, which  she  repeats,  but  which  we  shall  not,  took 
the  crowbar  from  her  by  force  —  that  she  screamed 
murder  and  he  stopped  her  mouth.  But  at  length 
she  escaped,  and  soon  after  deserted  the  house.  In 
the  skirmish  wliich  ended  in  his  taking  the  crowbar 
from  her,  she  seems  to  have  encountered  some  of 

'  The  perils  tliat  environ 
Tlie  man  that  meddles  witli  cohl  iron,' 

and  to  have  been  rather  roughly  handled.  But  con- 
sidering the  irritable  temper  of  the  Inisband,  it  seems 
to  us  that  she  escaped  with  quite  as  little  injury  as 


THE  LAW  REPORTERS.  45 

she  could  have  had  any  right  to  expect,  iu  such  an 
attempt  to  take  his  castle  by  storm. 

"  She  has  another  complaint  of  personal  chastise- 
ment inflicted  by  the  husband,  in  the  dispute  about 
certain  papers  belonging  to  the  society  for  educating 
pious  3'oung  men,  of  whicli  society  she  was  treasurer. 
Her  account  of  this  affair  is,  that  Poor  took  the  papers 
from  her  drawer  and  put  them  into  his  desk  —  that  she 
demanded  them,  and  he  refused  to  restore  them  — 
that  a  few  days  afterwards  she  liad  an  opportunity  to 
obtain  possession  of  them  in  his  absence,  and  took 
them  away.  "When  he  came  home  and  was  informed 
of  this,  he  flew  into  a  violent  passion,  and,  using  very 
profane  and  abusive  language  finally  horsewliipped  her. 

"  The  wife  was  the  treasurer  of  the  society,  and  to 
take  tlie  papers  from  her  without  her  consent  and  lock 
them  up  in  his  desk,  certainly  had  the  appearance,  not 
only  of  unkindness,  but  of  an  unmanly  meddling  iu  a 
concei-n  which  was  exclusively  under  the  management 
of  the  ladies  who  belonged  to  the  society,  and  must 
have  been  calculated  to  vex  and  irritate  the  wife. 

"  On  the  otlier  hand,  her  taking  advantage  of  his 
absence;  to  oiten  the  desk  and  take  away  the  papers 
lias  in  it  too  much  of  the 

FIcctere  si  ncqiicD  siiperos  Aclicronta  movebo, 

too  mn<'h  of  a  disposition  to  have  her  own  w  ill,  and 
her  own  way,  by  foul  means  if  not  by  fail',  to  Ije  com- 
mended ill  a  wife,  and  was  calculated  to  exasperate 
lif-r  husband." 


46  CURIOSITIES  OF 

FEOM  the  language  used  Ly  Lord  Eaymond  in 
his  report  of  the  case  of  Brewster  v.  Kitchin/ 
it  woukl  seem  that  he  had  no  great  respect  for  the 
justices  who  sat  with  Lord  Holt.  After  mentioning 
a  decisive  objection  to  an  action  started  by  the  Chief 
Justice,  he  says  :  "  But  the  other  three  judges  seemed 
to  be  in  a  surprise,  and  not  in  truth  to  comprehend 
this  objection ;  and  therefore  they  persisted  in  their 
former  opinion,  talking  of  agreements,  intent  of  the 
party,  binding  of  the  land,  and  I  know  not  Avliat. 
They  gave  judgment  for  the  plaintiff,  against  the 
opinion  of  Holt  Chief  Justice." 


IN  the  "Statutes  of  the  Streets,"  printed  in  1598, 
it  is  ordered  that  "no  man  ....  shall  whistle 
after  the  houre  of  nyne  of  the  clock  in  the  night," 
or  "  keep  any  rule  whereby  any  such  suddaine  outcry 
be  made  in  the  still  of  the  night,  as  making  an  affray 
or  beating  his  wife  or  servant,"  etc. 


FORTESCUE  affirms  that  "a  jury  is  not,  nor  can 
be,  bound  by  any  opinion  of  the  House  of  Com- 
mons, nor  by  any  court  of  law  in  the  world,  but  that 
of  their  own  consciences."  ^ 

1  1  Ld.  Raym.  322. 

2  De  Laud.  Leg.  Ang.  p.  107.     Cited  in  Broom  Constitutional  Law, 
p.  868. 


THE  LAW  REPORTERS.  47 

HOLT  C.  J.  "  If  a  man  solicits  a  woman  and 
goes  gently  to  work  with  her  at  first,  and  when 
he  finds  that  will  not  do  he  proceeds  to  force,  it  is 
all  one  contiuned  act,  beginning  with  the  insinuation 
and  ending  with  the  force.  And  this  being  an  at- 
tempt and  solicitation  to  incontinency,  coupled  with 
force  and  violence,  it  does  by  reason  of  tlie  force, 
which  is  temporal,  become  a  temporal  crime  in  the 
whole.  An  indictment  will  not  lie  for  a  plain  adul- 
tery, but  libel  in  the  spiritual  will."  ^ 


FliOM  the  journal  of  a  Gloucestershire  magistrate, 
A.  D.  1715  to  1756,  it  appears  that  Frances 
Williams,  a  damsel  who,  loving  well  rather  than 
wisely,  is  necessitated,  on  the  13th  April  1715,  to 
appear  before  the  magistrate,  in  accordance  with  the 
law  as  it  then  stood,  "  to  be  examined  about  her  great 
belly."  A  week  subsequently  she  is  again  brought 
before  him  "  touching  the  aforesaid  felony !' 


IN  a  case  in  the  Court  of  King's  Bencli,  in  conse- 
quence of  the  affirmative  of  the  issue  being  on 
tlie  defendant,  and  liis  beginning,  the  jnry  found  a 
verdict  for  the  defendant  when  tliey  intended  to  find 
ior  the  plaintiff.  The  court  refused  to  grant  a  new 
trial.2 

1  niRMnIt  r.  CiiUizar.l,  HoU.  r,l. 

2  Bri"lgewof>il  ».  W yni),  1  Harrison  &  Wollnston,  674.     Bridgcwntcr  v, 
I'lymoutli,  97  M:i«».  382,  3'Jl. 


48  CUPdOSlTlES   OF 

LORD  CAMPBELL,  in  his  Life  of  Lord  Lyiid- 
liurst,  p.  1-41,  gives  the  following  account  of  the 
great  case  of  The  Queen,  plaintiff  in  error,  v.  Milli-s.^ 
"The  law  lords  were  definitively  divided  upon  the 
most  important  question  which  ever  came  before  the 
House  of  Lords  as  the  Supreme  Court  of  Appeal. 
Unfortunately  such  a  question  was  decided  on  tlie 
technical  maxim  by  which  the  House  of  Lords  alone, 
of  all  the  tribunals  I  ever  read  of,  is  governed,  — 
Semper  pra^sumitur  contra  negantem,  —  making  the 
result  often  depend  upon  the  language  in  which  the 
questioned  is  framed.^  In  Ireland,  a  man  who  was 
a  member  of  the  Established  Church  was  married  to  a 
woman  who  was  a  Presbyterian  by  a  regularly  offici- 
ating Presbyterian  clergyman,  both  parties  intending 
to  contract  a  valid  marriage,  and  believing  that  they 
had  done  so.  They  lived  together  some  years  as  man 
and  wife,  and  had  .several  children,  who  were  acknowl- 
edged as  legitimate.  The  husband  then  married 
another  Avife,  the  former  wife  being  still  alive,  and 
was  indicted  for  bigamy.  His  defence  was  that  the 
first  marriage  was  a  nullity,  and  therefore  that  he 
committed  no  crime  when  he  married  the  second  wife. 
Then  arose  the  fearful  question,  whether  by  the 
common  law  of  England  there  might  be  a  valid  mar- 
riage by  the  consent  of  the  parties  without  the  pres- 
ence of  a  priest  episcopally  ordained.    For  half  a  cen- 

1  10  Clark  &  Finnelly,  534  (1844). 

2  But  see  Duraut  v.  Essex  Company,  7  Wallace,  p.  113,  and  Appendix, 
p.  755. 


THE  LAW  REPORTERS.  49 

tury,  ever  since  the  decision  of  Lord  Stowell,  in  the 
famous  case  of  Dahymple  v.  Dalryinple,^  it  had  been 
considered  established  doctrine  that  the  presence  of 
an  episcopally  ordained  priest  was  unnecessary.  This 
doctrine  had  been  expressly  approved  of  by  Lord  Ken- 
yon,  Lord  Ellenborough,  Lord  Tenterden,  and  all  onr 
most  eminent  Judges,  and  upon  the  strength  of  it  there 
had  been  repeated  convictions  for  bigamy.  But  in 
an  obscure  book,  lately  j)ublislied,  professing  to  state 
'  The  Law  of  Husband  and  Wife,'  ^  the  doctrine  was 
controverted ;  and  upon  this  doctrine  proceeded  this 
prisoner's  defence.  The  Irish  Judges  were  equally 
divided ;  and,  strange  to  say,  the  English  Judges,  be- 
ing consulted  by  the  House  of  Lords,  declared  them- 
selves unanimously  of  opinion  that  the  first  marriage 
was  null,  although  they  admitted  that  this  was  con- 
trary to  the  Canon  Law  which  prevailed  in  every 
other  country  of  Europe  before  the  Council  of  Trent. 
Tliey  relied  chielly  on  a  supposed  Anglo-Saxon  law, 
that,  to  make  nuptials  prosperous,  '  there  must  be 
I)resent  a  mass  2'>'>'^cst.'  Yet  they  admitted  that  a 
marriage  celcljrated  by  one  in  deacon's  ordei's  always 
was  and  is  valid,  notwithstanding  that  a  deacon  is 
not  a  mas.s  priest.  Six  law  lords  Iiad  been  present  at 
the  argument,  —  the  Lord  Chancellor,  Lord  Lynd- 
Imrst,  \jm\  Abinger,  I^)rd  Cottenham,  Lord  Jhougham, 
Ix>rd  iJenman,  and  Ij(jrd  Campbell.     Of  these,  the 

1  2  Hiigganl  Cons.  Rr-p.  04  (IHU). 

'  Kopcr  oil  the  Luw  of  Ilusbaii'l  ami  Wife,  ed.  Jacob,  1826. 


50  CURIOSITIES   OF 

first  three  voted  for  reversing  the  conviction,  and  the 
last  three  for  affirming  it. 

"If  the  motion  had  been  that  the  judgment  be 
affirmed,  we,  tlie.  contents,  should  have  succeeded  in 
establishing  the  old  common  law  as  laid  down  by 
Lord  Stowell,  the  presumption  being  against  the  nega- 
tive ;  but  the  Chancellor,  according  to  a  standing 
order  of  the  House,  put  the  question  that  '  the  judg- 
ment be  reversed,'  and  we  were  obliged  to  say  'Not 
content,'  the  presumption  was  against  us,  and  a  judg- 
ment passed  by  which  hundreds  of  marriages,  the 
validity  of  which  had  not  been  doubted,  were  nulli- 
fied, and  thousands  of  children  were  bastardized." 


LORD  COKE  says  that  if  a  gentlewoman  be 
termed  "  spinster,"  she  may  abate  the  writ. 
An  indictment  against  Alicia  S.  of  D.  in  the  county 
of  S.,  wife  of  F.  S.  spinster,  etc.  is  not  good ;  for  spin- 
ster being  an  indifferent  addition  for  man  or  woman, 
should  refer  to  F.  S.,  which  is  the  next  antecedent, 
and  so  the  woman  has  no  addition.^ 


IN  a  recent  case  Chief  Justice  Erie  observed :  "  It  is 
certainly  an  odd  sort  of  an  estate,  —  a  fee-simple 
in  a  profit  a  prendre."  ^ 


1  Dyer,  46  b.     Noj-  Maxims,  4. 

2  Bailey  v.  Stephens,  12  C.  B.  N. 


S.  p.  103. 


THE  LAW  REPORTERS.  51 

THE  following  is  Lord  Langdale's  graphic  descrip- 
tion of  Lord  Cardigan's  celebrated  trial :  "  The 
House  was  rather  thin  of  Peers.  The  case  went  off 
in  a  very  absurd  way.  The  indictment  was  for  firing 
at  Harvey  Garnctt  Phipps  Tuckett,  with  intent  to 
kill,  etc. ;  but  when  they  came  to  prove  this,  there 
was  no  witness  produced  who  knew  Lieutenant  Tuck- 
ett by  any  other  name  than  '  Harvey  Tuckett ' ; 
and  the  consequence  was  that  Sir  William  Follett 
immediately  objected  that  there  was  no  evidence 
to  sustain  the  indictment. 

"  Strangers  were  therefore  ordered  to  withdraw,  and 
Lord  Denman  stated  that  he  considered  the  objection 
valid,  and  in  this  he  was  supported  by  Lords  Abinger, 
Brougham,  Wynford,  etc. ;  and  then,  after  a  little 
debate  whether  the  House  should  at  once  proceed  to 
judgment,  it  \vas  decided  that  they  would;  and  the 
question  of  '  Guilty,  or  not  Guilty  ? '  being  put,  Lord 
Cardigan  was  immediately  acquitted."  ^ 


COXSEXT  cannot  give  jurisdiction  where  the  law 
has  not  siven  it.^ 


"  TUDGES  may  die,  and  courts  be  at  an  end  ;  but 

<J    justice  still  lives,  and,  though  slie  may  sleep  for 

a  while,  will  eventually  awake  and  nuist  be  satisfied."  ^ 

»  Jordan  r.  Dennis,  7  Mot.  590.    Lawroiice  i-.  Wilcock,  1l  A.  &  E.  941. 
2  Per  I'ttterson,  J.,  in  I'L-niiuilow  v.  Dounc,  3  Dall.  8i;. 


52  CURIOSITIES   OF 

A  CASE  where  great  importance  depended  upou 
the  precise  time  of  death  was  that  of  the  late  Earl 
Fitzhardiuge,  who  died  "about  midniglit,"  between 
October  1.0th  and  11th.  His  rents,  amounting  to 
£40,000  a  year,  were  payable  on  Old  Lady  Day  and 
Old  Michaelmas  Day.  The  latter  fell  this  year  (1857) 
on  Sunday,  October  11,  and  the  day  began  at  mid- 
night; so  that  if  he  died  before  twelve,  the  rents 
belonged  to  the  parties  taking  the  estate ;  but  if  after, 
they  belonged  to  and  formed  part  of  liis  personal  es- 
tate. The  difference  of  one  minute  might  therefore 
involve  the  question  as  to  the  title  of  £20,000. 

IN  the  case  of  City  of  Oakland  v.  Carpentier,  13  Cal. 
549,  550,  the  court,  referring  to  the  charter  of  the 
city  of  Oakland,  say :  "  A  perverse  ingenuity  seems 
to  have  been  exercised  to  make  it  as  lame  and  loose 
as  possible.  The  joint  labors  of  Malaprop  and  Par- 
tington could  scarcely  have  made  such  a  collocation 
or  dislocation  of  words  and  sentences.  Among  other 
things  it  gives  the  Board  of  Trustees  power  '  to  license 
and  suppress  dram-shops,  horse-racing,  gambling 
houses,  and  houses  of  ill-fame,  and  all  indecent  and 
immoral  practices,  shows,  and  amusements.'  This  is 
certainly  a  curiosity  in  the  way  of  legislation. 

LORD   CHANCELLOR  HARDWICKE  once  ju- 
diciously observed  that  the  virtue  of  a  woman 
does  not  consist  merely  in  her  chastity. — 2  Atk.  339. 


THE  LAW  REPORTERS  53 

IN  North's  Life  of  Lord  Keeper  Guilford,^  it  is  said  : 
"  The  court,  answering  the  title  of  Common  Pleas, 
was  placed  next  the  hall  door,  that  suitors  and  their 
train  might  readily  pass  in  and  out.  But  the  air  of 
the  great  door,  when  the  wind  is  in  the  north,  is  very 
cold,  and,  if  it  might  have  been  done,  the  court  had 
been  moved  a  little  into  a  warmer  place.  It  was 
once  proposed  to  let  it  in  through  the  wall  (to  be 
carried  upon  arches)  into  a  back  room,  which  they 
call  the  Treasury.  But  the  Lord  Chief  Justice  Bridg- 
man  would  not  agree  to  it,  as  against  Magna  Charta, 
which  says  that  the  Common  Pleas  shall  be  held  in 
certo  loco,  or  in  a  certain  place,  with  which  the  dis- 
tance of  an  inch  from  that  place  is  inconsistent,  and 
all  the  pleas  would  be  coram  non  judice.  Althougli, 
at  the  same  time,  others  thought  that  the  locus,  there, 
means  the  villa  ouly ;  so  that  the  returns  being  apud 
Westmonasterium,  the  court  might  sit  on  the  other 
side  of  the  Abbey,  and  no  solecism  of  jurisdiction 
happen.  But  yet  that  formal  reason  hindered  a  use- 
ful reform ;  which  makes  me  think  of  Erasmus,  who, 
having  read  somewhat  of  English  law,  said  that  tlie 
lawyers  were  doctissimum  genus  indoctissimorum 
honiinuiii." 

IN  1539  Parliament  passed  "An  Act  for  abolishing 
Diversity  of  Opinions  in  certain  Articles  concern- 
ing Christian  Iteligion."  ^ 

^  Vol.  I.  p.  Vy.).     M.iiinii);;  Scrvieiis  ad  Legem,  179,  180. 
2  31  Ileii.  VIII.  ch.  M. 


54  CURIOSITIES   OF 

SIR  JOHN  STKANGE,  Solicitor-General,  better 
known  in  tlie  profession  by  liis  lieports,  tlius 
records  under  his  own  hand  his  early  success  and 
good  fortune  :  "  Memorandum.  Having  received  a 
considerable  addition  to  my  fortune,  and  some  de- 
gree of  ease  and  retirement  being  judged  proper 
for  my  liealth,  I  this  term  (M.  T.  16  Geo.  II.)  re- 
signed my  ofllces  of  Solicitor-General,  King's  Coun- 
sel, and  Eecorder  of  the  city  of  London,  and  left  off 
my  practice  at  the  House  of  Lords,  Council  Table, 
Delegates  [now  the  Judicial  Committee  of  the  Privy 
Council],  and  all  the  courts  in  Westminster  Hall, 
except  the  King's  Bench,  and  there  also  at  the  after- 
noon sittings.  His  Majesty  (Geo.  II.),  wlien  at  a 
private  audience  I  took  leave  of  him,  expressed  him- 
self with  the  greatest  goodness  towards  me,  and 
honored  me  with  his  patent,  to  take  place  for  life 
next  to  his  Attorney-General.  —  Anno  letatis  meaj 
47."  1 

THE  king,  for  prevention  of  offences,  may  by 
proclamation  admonish  his  subjects  that  they 
keep  the  laws  and  do  not  offend  against  them ;  and 
the  disobeying  a  proclamation,  when  legal,  has  been 
said  to  constitute  a  substantive  offence,  for  which  the 
offending  party  may  be  punished.  But  said  Sir 
Edward  Coke,  "  I  never  heard  an  indictment  to  con- 
clude contra  regiam  proclamationem.^ 

1  2  Strange,  1176.  -  12  Rep.  75. 


THE  LAW  REPORTERS.  55 

IN  the  reign  of  Elizabeth,  actions  for  slanderous 
words  were  of  frequent  occurrence ;  and  many 
refined  distinctions  were  resorted  to  by  the  Judges. 
To  call  a  man  a  cuckold  was  not  an  ecclesiastical 
slander  ;  but  wittol  was,  for  it  imports  his  knowledge 
of  and  consent  to  his  wife's  adultery.^  Shakespeare 
noticed  this  distinction.  In  "  The  ]\Ierry  Wives  of 
Windsor,"  Act  II.  Scene  2,  Ford  exclaims,  "Terms 
names  !  —  Amaimon  sounds  well ;  Lucifer,  well ;  Bar- 
bason,  well ;  yet  they  are  devil's  additions,  the  names 
of  fiends  :  but  cuckold  !  vnttol-QMc\io\^  !  the  devil  him- 
self hath  not  such  a  name." 


IX  1824  John  Eichardson,  Esq.,  published  an 
edition  of  Branch's  Maxims  with  a  translation. 
The  following  are  specimens  of  this  scholarly  per- 
formance :  Errores  scribentis  nocere  non  debent,  that 
is,  Clerical  errors  ought  not  to  vitiate,  is  translated, 
"  The  mistah's  of  a  man  ivriting  ovght  not  to  harm." 
Again,  the  well-known  maxim,  Omnis  nova  consti- 
tutio  futuris  temjwiibus  formam  imponere  del)et,  non 
])ra.'teritis,  which  ^Iv.  Broom  accurately  translates, 
"A  legislative  enactment  ought  to  be  prospective  in 
its  oijcration,  not  restros])ective,"  is  tlius  rendered, 
"Ever//  mno  inHlUnllnii.  slnuihl  tjivc  a  form  to  future 
times,  not  to  pad." 

1  Holt  C.  J.  ill  Siiiifli  V.  Wood,  2  S:ilk.  6l»2. 


56  CURIOSITIES   OF 

IT  lias  sometimes  been  supposed  that  tlie  bench 
offers  but  little  opportunities  for  eloquent  fancy 
or  polite  erudition;  how  erroneous  this  o]iiiiion  is, 
our  readers  will  see  from  the  following  exordium  of 
an  opinion  delivered  by  Chief  Justice  Crozier,  in  the 
case  of  Searle  v.  Adams  :  ^  — 

"  In  this  case,  the  irrepressible  Statute  of  Limita- 
tions is  again  jjresented  for  consideration.  For  some 
years  past,  upon  the  disposition  of  each  succeeding 
case  involving  a  construction  of  this  statute,  it  was 
considered,  by  bench  and  bar,  that  fiction  itself  could 
scarcely  conceive  of  a  new  question  to  arise  there- 
under :  but,  as  term  after  term  rolls  arouud,  there 
are  presented  new  questions,  comparing  favorably  in 
point  of  numbers  with  Falstaff"s  men  in  buckram ; 
thus  adding  to  the  legions  that  have  gone  before  a 
new  demonstration  of  the  propriety  and  verity  of 
the  adage,  that  '  truth  is  stranger  than  fiction.'  "With 
the  heat  of  ninety-eight  degrees  of  Fahrenheit  in  the 
shade,  and  the  newspapers  teeming  with  rei)orts  of 
the  ravages  of  our  great  common  enemy,  who,  the  more 
effectually  to  accomplish  his  double  purpose  of  cap- 
turing the  impnulent  and  frightening  the  timid,  has 
assumed  the  form  of  the  Asiatic  monster,  it  might  be 
supposed  by  the  unthinking  that  the  consideration 
of  such  questions  would  be  entered  upon  rather 
reluctantly.  But  we  beg  to  disabuse  the  public  mind 
of  any  such  heresy.     Cases  might  be  imagined  where 

1  3  Banks,  515,  518. 


THE  LAW  REPORTERS.  57 

'  smaslies'  would  not  stimulate,  nor  'cobblers '  quicken, 
nor  'juleps  '  invigorate  ;  but  a  new  question  under  our 
Statute  of  Limitations,  in  coolness  and  restoring  power, 
so  far  exceeds  any  and  all  of  tliese,  tliat,  when  one  is 
presented,  the  '  fine  ould  Irish  gintleman's '  resurrec- 
tion under  the  circumstances  detailed  in  the  song 
becomes  as  palpable  a  reality  as  the  '  Topeka  Con- 
stitution,' or  '  tlie  territorial  capital  at  Mineola.'  The 
powers  of  a  galvanic  battery  upon  the  vital  energies 
are  wholly  incomparable  to  it.  So  that  the  consid- 
eration of  this  case  upon  this  day  of  wilted  collars 
and  oily  butter  should  not  entitle  the  court  to  many 
eulogies  for  extraordinary  energy  in  the  fulfilment  of 

its  duties Counsel  was  understood  to  intimate 

that  some  mischievously  disposed  persons,  witli  a 
diabolical  intent  not  clearly  revealed,  wliile  organized 
as  the  legislature  of  the  State,  had  made  a  violent 
and  unwarrantable  onslaught  upon  the  Constitution, — 
that  Constitution  wliich  this  court,  as  a  tripedal  pier, 
is  exerting  its  utmost  endeavors  to  sui)port,  —  that 
Constitution  wluch,  not  only  from  patriotic  and  moral, 
but  from  alimentary  considerations  as  well,  we  are 
bound  to  maintain  and  defend.  Being  in  a  somewhat 
'  melting  mood '  to-day,  we  would  be  pleased  to  gratify 
counsel  by  adopting  his  fears,"  etc. 

Tlic  learned  justice  then  goes  on  to  decide  the  case, 
and  concludes  that  "  it  is  as  transparent  as  thi;  soup 
of  wliich  Oliver  Twist  implored  an  additional  su])- 
ply,"  that  the  case  does  not  come  witliin  the  statute. 

3« 


58  CURIOSITIES   OF 

If  tlie  reader  desires  a  further  specimen  of  Judge 
Crozier's  eloquence,  we  refer  him  to  his  remarks  in 
Craft  'V.  The  State,^  in  defending  the  somewhat  obvious 
proposition,  that  a  jury  is  not  bound,  as  matter  of  law, 
to  disbelieve  the  evidence  of  a  prostitute ;  or,  to  use 
his  own  words,  that  it  ought  not  to  be  said  that  a  wo- 
man "  pours  out  from  her  heart  at  Venus's  shrine  with 
her  virtue  every  other  good  quality  with  wliich  in  our 
thoughts  we  endow  her  sex,"  and  tliis  "  whether  she 
habitually  Haunts  her  frailty  in  the  face  of  the  world, 
or  attempts  to  hide  it  in  retiracy,  or  garnish  it  with 
garlands  of  good  works." 


THE  fact  that  a  libel  is  published  in  a  newspaper 
on  the  communication  of  a  correspondent  is 
not  admissible  in  evidence  to  mitigate  damages.^  In 
an  early  case  in  Pennsylvania,  the  court  quaintly 
says :  "  It  will  not  be  denied  that  if  one  designedly 
bespatters  another's  clothes  with  filth  as  he  passes 
the  street,  though  at  the  instigation  of  a  third  person, 
he  would  be  liable  for  damages.  And  shall  a  printer 
with  Ids  types  blacken  the  fairest  reputation  —  the 
choicest  jewel  we  enjoy  —  and  go  scot-free,  merely 
because  he  has  told  the  world  that  the  paper  is  in- 
serted at  the  request  of  another  ? "  ^ 

1  3  Banks,  4.50,  480. 

2  Talbutt  V.  Clark,  2  M.  &  Rob.  312,  per  Lord  Denman,  C.  J. 

8  Rankle  v.  Meyer,  3  Yeates,  518,  quoted  iu  The  North  American 
Review,  August,  1880,  p.  113. 


THE  LAW  REPORTERS.  59 

"  TF  we  judge  against  former  judgments,  said  Prisot, 
-L  C.  J.,  it  is  a  bad  example  to  the  barristers  and 
students  of  Law ;  tliey  will  not  have  any  faith  in,  or 
give  any  credit  to  their  books."  —  Year  Book,  33  Hen. 
XL  41. 


IX  "  The  Practice  of  the  High  Court  of  Chancery 
Unfolded,"  ed.  1672,  we  find  the  follo^\^ng  among 
"  Suits  denied  help  in  the  Chancery,  pp.  49,  50  " :  — 

Perpetuities  of  all  kinds  by  assurances,  statutes 
acknowledged,  etc.  for  they  fight  against  God. 

A  plaintiff  making  his  title  by  an  entail,  the  Lord 
Chancellour  Egerton  dismissed  it,  saying  of  the  statute 
De  donis  conditionalibus,  calling  it  the  ambitious 
statute,  let  it  help  him  at  the  law  as  it  may. 

Casual  morts  upon  the  return  from  Constantinople, 
etc. 

Play-liouses  and  all  houses  of  iniquity,  the  court 
being  a  court  of  equity. 

Estates  derived  under  concealed  titles,  tlie  Lord 
Egerton  saying  that  as  the  titles  began  by  the  rigour 
of  the  law,  let  tliem  so  maintain  them  by  the  law  as 
they  come. 

Country  awards  by  the  voluntary  submission  of  the 
jiarties  without  any  order  or  reference  of  court. 

A  man  steals  his  wife  against  her  friends'  assent, 
and  sues  for  a  portion  here :  \jm\  Egerton,  He  that 
steals  fie.sh  let  him  provide  bread  liow  lie  can. 


60  CURIOSITIES   OF 

MR.  BISHOP,  in  his  learned  and  instructive 
"  Commentaries  on  the  Law  of  ]\Iarried 
Women, "  Vol.  II.  §  727,  thus  discourses  on  the  stat- 
utes of  Massachusetts  :  —  "  This  is  one  of  those 
tStates  in  which  legislation,  almost  ever  since  the 
popular  agitation  of  the  subject  of  married-women 
laws  commenced,  has  been  travelling  forward,  seeking 
rest  and  finding  none.  .  .  . 

"At  present,  the  laws  on  this  subject  are  contained 
in  the  General  Statutes  of  1860,  and  not  far  from  a 
dozen  supplementary  acts.  The  most  important  of  the 
latter  is  the  act  of  April  24, 1874;  it  leaves  but  little, 
as  respects  property  and  personal  rights,  to  be  com- 
plained of  by  the  most,  ardent  advocate  of  the  policy 
which  yields  to  wives  the  double  advantages  of  mat- 
rimony and  single  bliss,  and  lifts  from  the  shoulders 
of  their  husbands  none  of  the  burdens  borne  when 
the  law  gave  them  compensatory  advantages.  It  re- 
mains only  to  add  a  provision  compelling  every  young 
'  man  to  marry  instantly  the  girl  who  chooses  him, 
and  the  end  of  domestic  woe  will  have  come  in 
Massachusetts. 

"Then  she  can  have,  as  she  can  have  now  if  the 
man  will  submit  to  the  marriage,  for  her  sole  and  sep- 
arate use,  to  accumulate  till  her  husband  dies,  all  that 
she  owned  before  marriage,  all  that  comes  to  her  after- 
ward, and  all  that  she  can  acquire  by  her  labor  and 
skill ;  while  he  provides  for  her  house-room,  meals, 
clothing,  and  the  other  necessaries  of  life.     Whether, 


THE  LAW  REPORTERS.  61 

he  shall  occupy  her  bedroom  at  night,  or  take  a  sepa- 
rate room  and  conduct  himself  as  he  ought  if  not  mar- 
ried, it  is  for  her  to  determine.  If  she  chooses,  she 
may  employ  her  time  with  domestic  cares;  or,  if  she 
chooses,  she  may  leave  her  babes  for  him  to  look 
after  and  nurse,  and  her  meals  for  him  to  prepare  with 
his  own,  while  she  engages  in  business  on  her  sep- 
arate account,  and  accumulates  money  not  a  cent  of 
which  or  its  increase  is  she  required  to  appropriate 
to  the  support  of  her  family  or  even  of  herself,  — 
all  must  be  borne  by  the  husband.  The  author  is 
happy  to  know,  from  some  acquaintance  with  the 
Avomen  of  Massachusetts,  that,  on  the  average,  they 
are  not  the  softs  which  the  men  are  who  made  these 
laws.  Whether  the  future  children  will  inherit  the 
qualities  of  the  father  or  the  mother,  the  develop- 
ments of  coming  years  will  disclose." 


MR.  JUSTICE  EMERY  once  observed  :  "  The 
case  cited  from  Yerger's  Reports  we  have 
not  been  so  happy  as  to  see.  We  regret  it  the  more 
Ijecause  of  the  high  reputation  of  the  court  and  of 
the  reporter.  We  must  be  contented  to  take  the  law 
as  we  lind  it  tliis  side  of  the  Alleghanies.  "  ^ 

1  State  V.  Fluid,  14  Maine,  249. 


62  CURIOSITIES   OF 

DR  BENTLEY'S  CASE.  A  process  issued  to 
the  beadle  to  compel  Bentley  to  appear  at  the 
next  court.  The  beadle  accordingly  waited  upon 
Bentley  and  showed  him  the  process,  and  served  him 
with  it.  Upon  discourse  between  them  concerning 
the  process  and  the  Vice-Chancellor,  Bentley  contemp- 
tuously said,  the  process  was  illegal  and  unstatutable, 
and  that  he  MTjuld  not  obey  it ;  he  took  the  process 
out  of  the  hands  of  the  beadle,  saying  the  Vice-Clian- 
cellor  was  not  his  judge,  and  that  he  acted  foolishly. 

LoKD  Chief  Justice  Pratt:  "As  to  Dr.  Bentley's 
behavior  upon  being  served  with  the  process,  I  must 
say  it  was  very  indecent,  and  I  can  tell  him  if  he 
had  said  as  much  of  our  process  we  would  have  laid 
him  by  the  heels  for  it ;  he  is  not  to  arraign  the  jus- 
tice of  the  proceedings  out  of  court  before  an  officer, 
who  has  no  power  to  examine  it.  When  he  said  the 
Vice-Chancellor  acted  foolishly,  it  was  what  he  might 
have  been  bound  over  for  to  his  e,ood  behavior."  ^ 


ACCOEDING  to  Lord  Campbell,  in  the  tenth 
year  of  King  Henry  VII.,  that  very  distin- 
guished judge,  Lord  Hussey,  who  Avas  Chief  Justice  of 
England  during  four  reigns,  in  a  considered  judgment 
delivered  the  opinion  of  the  whole  Court  of  King's 
Bench  as  to  the  construction  to  be  put  upon  the  words, 
"  As  free  as  tongue  can  speak  or  heart  can  think."  ^ 

1  Strange,  557,  2  Ld.  Raym.  13.34;  8  Mod.  148  ;  Fortescue,  202. 

2  Year  Book,  10  Hen.  VII.  fol.  13,  pi.  G. 


THE  LAW  REPORTERS.  63 

IX  Saunders's  report  of  the  case  of  Veale  v.  "Warner,^ 
after  a  statement  of  his  argument  for  the  defend- 
ant, he  proceeds :  "  And  of  such  opinion  was  the 
whole  court  clearly.  But  they  would  not  give  judg- 
ment for  the  defendant,  because  they  conceived  it 
was  a  trick  in  pleading ;  but  they  gave  the  plaintiff 
leave  to  discontinue  on  payment  of  costs.  And 
Kelynge  Chief  Justice  reprehended  Saunders  for 
pleading  so  subtly  on  purpose  to  trick  the  plaintiff 
by  the  omission  of  the  other  part  of  the  award.  But 
it  was  a  case  of  the  greatest  hardship  on  the  defend- 
ant ;  for  the  bond  of  submission  was  only  in  the 
penalty  of  £2000,  and  the  arbitrators  had  awarded 
him  to  pay  £3100,  being  £1100  more  than  the  real 
penalty  of  the  bond ;  when,  in  truth,  there  was  nothing 
at  all  due  to  the  plaintiff,  but  he  was  indebted  to  the 
defendant." 


IT  is  one  of  the  principles  of  eternal  justice,  tliat 
no  one  is  to  be  punished  or  deprived  of  his 
property  in  any  judicial  proceeding,  unless  he  has  had 
an  opportunity  of  being  heard.  Fortescue,  J.  refers 
to  a  very  old  precedent  in  support  of  tliis  doctrine.^ 
"  I  have  heard  it  observed  by  a  very  learned  man," 
says  he,  "  that  even  God  himself  did  not  pass  sentence 
u])on  Adam  before  he  was  called  upon  to  make 
Ills  defence.     '  Adam,'  says  God,  '  where  art  thou  ? ' 

1  1  Saund.  327,  .327  a,  Gtli  td.  2  ]  Strange,  007. 


64  CURIOSITIES   OF 

Hast  thou  not  eaten  of  tlie  tree  whereof  I  com- 
manded thee  that  thou  shouldst  not  eat  ? '  And  the 
same  question  was  put  to  Eve  also."  In  a  recent 
case  this  passage  was  cited  in  his  judgment  by  Mr. 
Justice  Maule.^ 


IN  Birks  v.  Trippet,^  is  the  following  passage : 
"And  Twisden  Justice  interrupted  Saunders,  and 
said  to  him,  '  What  makes  you  labor  so  ?  The  court 
is  of  your  opinion,  and  the  matter  clear.' " 

The  reporter  appended  the  following  note  to  the 
case  of  Hayman  v.  Gerrard :  ^  "  The  court  said  that 
the  replication  in  this  case  was  well  concluded,  and 
as  it  ought  to  be  :  quod  mirum  yidetur ;  for  it  seems 
to  me  that  the  replication  ^^'as  bad  vipon  that  account, 
but  well  enough  for  the  other  point."  The  reporter's 
wonder  is  now  confirmed.* 


P 


EACTICE  is  law  solidified  into  fact.^ 


AX  indictment  of  death  ought  to  comprehend  the 
day  of  the  stroke  and  day  of  the  death  ;  and 
the  same  law  of  poisoning ;  so  that  it  may  be  known 
if  he  died  of  the  same  stroke  or  not.^ 

1  Abley  v.  Dale,  10  C  B.  71,  72  (1850). 

2  1  Saiind.  3-3  b,  Gth  ed.  3  1  Saund.  103,  6tli  ed. 

4  Thome  r.  Jenkins,  12  M.  &  W.  014.       s  Tlie  Reporters,  255,  3d  ed. 
6  Brooke's  New  Cases,  March's  Translation,  p.  114,  ed.  1873. 


THE  LAW  REPORTERS.  65 

THEKE  is  a  well-known  judgment  of  Mr.  Jus- 
tice Maule,  when  a  difference  of  opinion  existed 
among  the  members  of  the  bench.  "I  agree,"  said 
this  caustic  judge,  "with  the  conclusions  of  my 
brother  A.,  for  the  reasons  offered  by  my  brothers 
B.  and  C." 

SUEPLUSAGE,"  said  the  same  eminent  judge,  in 
that  happy  mode  in  which  he  combined  wit 
and  wisdom,  "  is  something  that  is  altogether  foreign 
and  inapplicable,  as  if  you  were  to  state  that  a  man 
liad  a  blue  coat  on  and  did  a  certain  thing ;  but  it  is 
not  surplusage  to  say  that  the  defendant  knocked  the 
plaintiff  down,  and  also  tore  his  clothes,  and  also  put 
his  eye  out." 

THE  book  called  Latch's  Reports  is  confessedly 
but  a  copy  made  by  Latcli  from  some  other' 
book.  "lieader!"  appeals  the  editor  of  Latch,  in 
pompous  and  lying  solemnity,  "  the  testimonials  of 
many  sages  of  the  law,  the  judges,  and  liis  contem- 
poraries, give  you  an  assurance,  above  all  I  can 
expre.ss,  that  the  original  of  this  impression  was  all 
written  by  that  worthy  person's  own  liand."  In  the 
preface  to  Palmer's  Peports  it  is  said  somewliat 
snarlingly,  tliat  tlie  cases  in  Latch  are  reported  "cor- 
ruptly enough."  ^ 

>  W  il'afo  Tlic  Rpporfers,  190,  3d  od. 


66  CURIOSITIES   OF 

IN"  the  "  Assizes  de  Jerusalem  "  —  one  of  the  most 
curious  and  important  relics  of  the  jurisprudence 
of  the  Middle  Ages,  a  compilation  made  towards  the 
close  of  the  eleventh  century —  we  have  a  full  account 
of  the  office,  duties,  and  proper  qualifications  of  a 
pleader.  As  a  translation  of  this  barbarous  dialect 
may  save  tlie  reader  some  trouble,  the  following  very 
literal  one  is  offered  :  ^  "  Every  person  about  to  plead 
in  the  Supreme  Court  ought,  before  he  begins,  to 
pray  the  lord  to  appoint  him  counsel.  He  ought  to 
pray,  for  his  counsel,  the  best  pleader  in  the  court ; 
and  this,  whether  he  is  himself  a  pleader  or  not ; 
because,  in  the  latter  case,  he  will  need  counsel  to 
defend  his  right,  and  establish  his  claim  or  defence ; 
and  even  in  the  former,  he  will  do  well  to  have 
counsel ;  since  there  is  no  pleader  so  wise,  that  he 
may  not  be  often  advised,  on  his  pleading,  by  another 
,  pleader ;  as  two  pleaders  know  more  than  one,  etc. 
He  who  has  counsel,  and  wishes  to  make  claim  on 
some  man  or  woman  present  in  court,  ought  to  say 
by  his  counsel  to  the  lord,  so  that  the  other  party 
may  hear.  Sir,  such  an  one  makes,  before  you,  such 
a  claim,  and  hopes  to  obtain  justice,  in  that  1)ehalf, 
from  you  and  the  court ;  and  then  he  should  say 
what  he  claims,  and  in  the  shortest  way  possible,  etc. 
A  good  pleader  ought  to  have  good  sense,  a  sound 
understanding,  and  a  subtle  genius ;  he  should  be  free 
from  the  faults  of  indecision,  timidity,  false  shame, 

1  Stephen  on  Pleading,  Appendix,  p.  xiv.  9th  Am.  ed. 


THE  LAW  REPORTERS.  67 

haste,  and  uouclialauce ;  while  he  pleads,  he  sliould 
keep  his^  attention  from  wandering  to  any  other 
subject,  and  should  also  take  care  to  avoid  undue 
heat  and  asperity."  Some  of  these  admonitions  seem 
to  deserve  the  attention  of  the  nineteenth  no  less 
than  the  eleventh  century. 


THE  old  reporters  often  note  the  manner  of  the 
judges.  Godbolt  tells  us  that  the  "Lord  Chan- 
cellor, smiling,  said  "  ^  that  a  case  might  be  doubted. 
EoUe  questions  the  correctness  of  an  opinion  uttered 
by  Coke,  since  "  Haught  semble  a  disallower  ceo  car  il 
shake  son  capit  at  ceo."  ^  And  Saunders  re]3orts  a  case 
where  a  majority  of  the  court  gave  judgment  for  the 
plaintiff,  but  "  Twisden  Justice  contratotis  viribus, 
and  that  the  action  did  not  lie."  ^  In  recording  the 
judgments  of  this  somewhat  passionate  judge,  the 
reporters  begin,  "  Twisden,  in  furore,  observed,"  etc.* 


"T  I  'I  HEY  [corporations]  cannot  commit  trespass  nor 
J-    be  outlawed  nor  excommunicate,  for  they  have 
no  souls."  —  10  Kep.  32  b.^ 

1  Lord  Mountjoy's  Case,  Godbolt,  18. 

2  Hudson  V.  Burton,  1  Rolle  Rep.  189 
8  Pomfret  v.  Ricroft,  1  Saund.  322. 

*  See  Saunders,  passim. 

6  Recent  cases  liavo  decided  that  an  action  will  lie  at  the  suit  of  or 
against  a  corporation  for  a  libel.  Whitfield  v.  Southeastern  Riiilway 
Company,  27  L.  .1.  Q.  R.  229.  Metropolitan  Saloon  Omnibus  Company, 
V.  Hawkins,  2b  L.  .1.  K.xrli.  201. 


68  CURIOSITIES   OF 

OF  a  recent  Act  of  Parliament,  it  was  remarked  by 
]\Ir.  Justice  Maule,  "  that  it  was  incongruous 
and  impossible  of  operation,  and  its  absurdities  so 
great  that  the  framers  themselves  had  no  very  dis- 
tinct notion  of  its  meaning."  ^ 

In  a  very  recent  case,^  Blackburn  J.  observed  with 
respect  to  an  Act  passed  in  1746:  "The  statute, 
though  not  drawn  in  modern  times,  is  somewhat 
obscure." 

PLO WDEIST  states  this  case  •  If  a  woman  is  warden 
of  the  Fleet,  and  one  imprisoned  in.  the  Fleet 
marries  her,  it  is  an  escape  in  the  woman  and  the 
law  adjudges  the  prisoner  to  be  at  large,  for  he  cannot 
be  lawfully  imprisoned  but  under  a  keeper,  and  he 
cannot  be  under  the  custody  of  his  wife,  for  which 
reason  the  law  must  necessarily  adjudge  him  to  be  at 
larsre.^ 


YELA^ETOI^  thus  concludes  his  report  of  a 
case  in  which  he  was  of  counsel  witli  the 
defendant :  "  And  therefore  the  plaintiff,  seeing  the 
opinion  of  the  court  against  him,  prayed  that  he 
might  discontinue  the  suit.  Quod  fuit  concessum 
per  Fleming  Chief  Justice,  and  the  other  justices 
would  not  cross  him  in  it."^ 

1  Stratton  v.  Pettit,  16  C.  B.  p.  432. 

2  Regiua  c  Scott,  4  Best  &  Smith,  p.  3;  4. 
8  Comm.  37. 

4  Douglity  V.  Fawn,  Yelv.  p.  227. 


THE  LAW  REPORTERS.  69 

THE  learned  Lord  Chief  Justice  of  the  Court  of 
Queen's  Bench  thus  discourses  of  the  subtili- 
tas  legum :  "  An  amusing  instance  of  this  subtilitas  is 
given  by  Gaius,^  in  the  case  of  a  man  who  brought 
an  action  against  another,  on  a  law  of  the  Twelve 
Tables,  for  cutting  down  his  vines.  The  plaintiff 
proved  the  fact,  but  he  was  defeated,  or,  as  we  should 
say,  nonsuited,  because  the  law  in  giving  the  action 
had  spoken  only  of  cutting  down  trees,  and  it  was 
held  that  the  plaintiff  ought  to  have  folloM'ed  the 
words  of  the  law.  I  take  it  there  is  nothing  to  beat 
this  to  be  found  in  Meeson  and  AVelsby.  Xo  wonder 
that  Gaius,^  speaking  of  the  old  legal  actions,  is  led 
to  say,  '  Sed  ista3  omnes  legis  actiones  paulatim  in 
odium  venerunt.  Xamque  ex  nimia  subtilitate  ve- 
terum  eo  res  perducta  est,  ut  qui  minimum  errassci 
litem  'pcrclerct.'  Of  this,  indeed,  the  volumes  of 
^Meeson  and  Welsby  might  furnish  us  with  instances 
in  abundance." 

IN  an  old  case  ^  Hale  C.  J.  said  that  "  if  such  an 
action  should  be  allowed,"  —  that  is,  an  action 
against  a  custom-house  officer  for  seizing  goods,  wliieli 
were  afterwards  condemned  as  forfeited  l»y  judg- 
ment of  tlie  proper  court,  —  "the  judgment  would  be 
blowed  off  l^y  a  side  wind."  ^ 

1  Inst.  IV.  12.  2  Inst.  IV.  30. 

8  VuriiliTbcrf?  tJ.  Bliike,  Ilardros,  194. 

*  Quoted  by  Byles  J.  in  Ilasubc  v.  Aluttliowa,  L:i\v  KoiJ.  2  C.  1*.  p.  C.S7. 


70  CURIOSITIES   OF 

LOED  BACON  relates  1  that  in  Chancery,  one 
time,  when  the  counsel  of  the  parties  set  forth 
the  boundaries  of  the  land  in  question  by  the  plot, 
and  the  counsel  of  one  part  said,  "  We  lie  on  this 
side,  my  lord,"  and  the  counsel  of  the  other  part 
said,  "We  lie  on  this  side,"  the  Lord  Chancellor 
Hatton  stood  up  and  said,  "  If  you  lie  on  both  sides, 
whom  will  you  have  me  to  believe." 


EOLLE  reports  a  case  ^  which  contains  a  discus- 
sion between  the  bar  and  the  bench,  which 
deserves  a  place  beside  Stradling  v.  Stiles,  reported 
by  Pope.  The  report  cannot  with  good  taste  be 
copied ;  but  it  is  worth  reading,  in  the  original,  by 
any  one  fond  of  that  literature  elegantly  veiled  in 
French  catalogues  as  "  curieux." 


IN  the  first  volume  of  Cushing's  Eeports  ^  is  this 
marginal  note  :  "  The  jurisdiction  of  State  courts 
being  limited  by  State  lines,  it  is  difficult  to  see  how 
the  order  of  a  court,  served  upon  a  party  out  of  the 
State  in  which  it  is  made,  can  have  any  greater  effect 
than  knowledge  brought  home  to  tlie  party  in  any 
other  way." 

1  Apothegms,  pi.  74.    Works,  Vol.  VII.  p.  136,  ed.  Spedding. 

2  White  V.  .Brough,  1  Eolle  Rep.  286.     Wallace  The  Reporters,  183, 
3ded. 

8  Ewer  V.  Coffin,  1  Cusli.  24. 


THE  LAW  REPORTERS.  71 

SOME  very  significant  remarks  of  Lord  Holt  are 
found  in  the  case  of  "Wright  v.  Sharp.^  It  was 
a  motion  to  have  exceptions  allowed  after  the  trial. 
Lord  Holt  said :  "  You  should  have  insisted  on  your 
exception  at  the  trial ;  you  waive  it  if  you  acquiesce, 
and  shall  not  resort  back  to  your  exception  after  a 
verdict  against  you,  when  perhaps,  if  you  had  stood 
upon  your  exception,  the  party  had  other  evidence, 
and  need  not  have  put  the  cause  upon  this  point." 


"  TTOWSOEATEE  the  verdict  seem  to  stray,"  says 
J — L  Lord  Hobart,  "  and  conclude  not  formally  or 
punctually  unto  the  issue,  so  as  you  cannot  find  the 
words  of  the  issue  in  the  verdict,  yet  if  a  verdict  may 
be  concluded  out  of  it  to  the  point  in  issue,  the  court 
shall  work  it  into  form,  and  make  it  serve."  ^ 


IX  1674  Lord  Chief  Justice  North,  in  his  judgment 
in  a  celebrated  case,^  says  :  "  These  instances  shew 
that  an  action  upon  tlie  case  is  esteemed  a  cat] lol icon" 
that  is,  according  to  Johnson's  Dictionary,  "  an  univer- 
sal medicine." 

1  1  Salk.  288.    Quoted  by  Sliaw  C.  J.  in  Ilolbrook  v.  Jsicksoii,  7  Cush. 
p.  154. 

2  Foster  I'.  Jackson,  Ilobiirt,  54.   (Quoted  in  Conimonweiiltli  v.  Stcbbius, 
8  Gray,  p.  490. 

8  iJiirnurdiston  v.  Soiinie,  0  Ilowcli  State  Trials,  j),  1108. 


72  CURIOSITIES   OF 

SIR  THOMAS  CLARKE,  Master  of  the  RoUs, 
observed  :  "  There  are  two  things  against  which 
a  judge  ought  to  guard,  —  precipitancy  and  procrasti- 
nation. Sir  Nicholas  Bacon  was  made  to  say,  which 
I  hope  never  again  to  hear,  that  a  speedy  injustice  is 
as  good  as  justice  which  is  slow."  ^ 


""ATOTHING  can  call  this  court  into  activity," 
-LM  judicially  observed  Lord  Camden,  "but  con- 
science, good  faith,  and  reasonable  diligence.  When 
these  are  wanting,  the  court  is  passive  and  does 
nothinsr."  ^ 


IF  one  man  keeps  a  school  in  such  a  place,  another 
may  do  so  likewise  in  the  same  place,  though  he 
draw  away  the  scholars  from  the  other  school,  't  is 
true,  this  is  damnum,  but  't  is  absque  injuria ;  but  he 
must  not  shoot  guns  at  the  scholars  of  the  other 
school,  to  fright  them  from  coming  there  any  more.^ 


LORD  HALE  says  a  jury  should  be  told  "  where 
the   main   question    or   knot   of  the   business 
lies."  4 

1  Atherton  v.  Worth,  1  Dickens,  p.  377. 

2  Smith  V.  Chiy,  3  Brown  C.  C.  p.  639  note. 
8  Holt  Chief  Justice,  3  Salk.  10. 

4  History  of  the  Common  Law,  256.    Quoted  in  the  judgment  in  Black- 
burn V.  Crawfords,  3  Wallace,  p.  194. 


THE  LAW  REPORTERS.  73 

~V"TT"HILE  Chief  Justice  Eicliardson  was  attend- 
V  V  ing  the  assizes  at  Salisbury,  a  prisoner,  whom 
he  had  condemned  to  death  for  some  felony,  threw 
a  brickbat  at  his  head ;  but,  stooping  at  the  time,  it 
only  knocked  off  his  hat.  "When  his  friends  con- 
gratulated him  on  his  escape,  he  said,  "  You  see,  now, 
if  I  had  been  an  upright  judge,  I  had  been  slain." 
The  additional  punishment  upon  this  offender  is  thus 
curiously  recorded  by  Chief  Justice  Treby  in  the 
margin  of  Dyer's  Eeports,  p.  188  b.  "  Eichardson  C. 
J.  de  C.  B.  at  Assizes  at  Salisbury  in  Summer  1631, 
fuit  assault  per  Prisoner  condemne  pur  Felony;  — 
que  puis  son  condemnation  ject  un  Brickbat  a  le  dit 
Justice,  C[ue  narrowly  mist.  Et  pur  ceo  immediate- 
ly fuit  Indictment  drawn  pur  Noy  envers  le  Prisoner, 
et  son  dexter  manus  ampute  et  fixe  al  Gibbet,  sur 
c[ue  luy  mesme  immediatement  hange  in  presence  de 
Court." 


OXE  Bro'\\ni  set  forth  in  libel  his  descent;  that 
another  person,  in  way  of  defamation,  said  he 
was  no  gentleman,  but  descended  from  Brown,  the 
great  pudding-eater,  in  Kent ;  but  it  appearing  he  was 
not  so  descended,  but  from  an  ancient  family,  he  that 
spoke  the  words  underwent  the  sentence  of  the  court, 
and  decreed  to  give  satisfaction  to  tlie  party  com- 
plaining.^ 

1  Rnshworth,  Vol.  II.  pt.  2.  p.  1055. 
4 


74  CURIOSITIES    OF 

IN  Baker  v.  Pierce,^  Holt  C.  J.  Scaid  :  "  I  remember 
a  story  told  by  Mr.  Justice  Twisden,  of  a  man 
that  had  brought  an  action  for  scandalous  words 
spoken  of  him,  and  upon  a  motion  in  arrest  of  judg- 
ment, the  judgment  was  arrested ;  and  the  plaintiff 
being  in  court  at  that  time  said,  that  if  he  had 
thought  he  should  not  have  recovered  in  his  action, 
he  would  have  cut  his  throat." 


IN  Massachusetts,  in  a  recent  case  ^  it  was  said  that 
"  before  parties  were  made  competent  witnesses, 
it  was  the  practice  to  prove  their  intent  ))y  a  variety 
of  circumstances,  because  no  man  can  know  the  se- 
cret purposes  of  another's  heart  except  himself." 


LEVINZ  observes  "  that  the  judges  of  late  years 
have  had  a  gTeater  consideration  for  the  passing 
of  the  estate,  which  is  the  substance  of  the  deed,  than 
the  manner  how,  which  is  the  shadow."  ^ 


THE  forms  of  decrees  are  the  best  exponents  of 
the  law.4 


1  2  Lcl.  Raym.  960. 

2  Fisk  y.  Chester,  8  Gray,  p.  508. 

8  3  Levinz,  372.    Cited  2  Sauiid.  97  b,  97  c,  Gth  ed. 
4  Per  Lord  Justice  Knight  Bruce,  in  Sherwin  v.  Shakespeare,  23  L.  J. 
Ch.  901. 


THE  LAW  REPORTERS.  75 

IX  the  celebrated  case,  Stockdale  v.  Hansard,^  the 
Sheriffs  of  London  were  imprisoned  by  the  House 
of  Commons  for  a  contempt  in  doing  that  for  the 
not  doing  of  which  the  like  fate  would  have  awaited 
them  at  the  bar  of  the  Court  of  Queen's  Bench. 


MEDLYCOTT  v.  JOETIXa  was  a  case  upon  Mr. 
Serjeant  Hill's  will,  which  was  so  singularly 
confused,  that  but  for  the  respect  due  to  the  very 
learned  Serjeant,  it  might,  not  unreasonably,  have 
been  held  void  for  uncertainty.  The  will  of  Sir 
Samuel  Romilly  was  also  inartificially  penned,  and 
that  of  Chief  Baron  Thomson  was  the  subject  of 
Chancery  proceedings.  So  also  were  the  wills  of 
Chief  Justice  Holt,^  Chief  Justice  Eyre,*  Mr.  Serjeant 
IMaynard,^  Vernon,  the  eminent  chancery  counsel,^ 
Baron  Wood,'^  Mr.  Justice  Vaughan,^  Francis  Vesey 
Junior,  the  reporter,^  and  Richard  Preston,  the  con- 
veyancer.i"  Chief  Justice  Saunders  appears  to  have 
made  a  speculative  devise,  upon  the  validity  of  which 

1  9  Ad.  &  EI.  1.  2  2  Brodorip  &  Bingham,  632. 

8  Viner  Ab.  Apportionment,  p.  18.  *  G.  Cooper,  156. 

5  Earl  of  Stamford  v.  Sir  John  Ilobart,  3  Brown  V.  C.  31. 

6  Acherley  v.  Vernon,  1  P.  Wms  783. 

7  Baker  v.  Bayldon,  31  Beavan,  209.  "  He  was  one  of  tlie  greatest  of 
pleaders."  Per  Hayes  .J.  in  The  Queen  v.  Diplock,  10  Best  &  Smith, 
p.  175. 

8  Knight  V.  St.  .John,  coram  Wood  V.  C.  (1862). 

*  Vesey  v.  Vesey,  coram  Kindersley  V.  C.  (1862). 

10  Wiiyte  c.  I'rcston,  coram  the  Sliustcr  of  the  Rolls  (1862). 


76  CURIOSITIES  OF      i 

his  executors,  !Maynard,  Holt,  and  PoUexfen,  all  great 
lawyers,  were  divided  in  opinion.^  The  will  of 
Bradley,  the  celebrated  conveyancer,  was  set  aside  by 
Lord  Thurlow  for  uncertainty.^  And  a  late  learned 
Master  in  Chancery  directed  the  proceeds  of  his 
estate  to  be  invested  in  Consols  in  his  oimi  name^ 


THE  following  passage  is  taken  from  the  preface 
to  Lilly's  Reports  (A.  D.  1719)  p.  xxix :  "I 
admit  that  good  forms  are  A^ery  necessary,  where 
they  relate  to  the  subject-matter,  but  are  ridiculous 
where  they  do  not;  as  for  instance,  the  form  of  a 
declaration  in  assault  and  battery  is  quare  vi  et  armis 
(the  defendant)  in  et  super  (the  plaintiff)  insultum 
fecit  et  baculis  gladiis  et  cultellis  verberavit  et 
vulneravit,  etc.  The  very  same  term  was  once  used 
by  a  skilful  attorney  in  an  action  against  the  defend- 
ant for  assaulting  the  plaintiff's  wife,  who  volun- 
tarily departed  from  her  husband,  and  lived  with 
the  defendant  in  adultery.  I  remember  great  advice 
was  taken  about  this  declaration,  and  tliat  it  was 
resolved  by  all  the  counsel  for  the  plaintiff,  that  the 
criminal  familiarity  of  the  defendant  was  very  prop- 
erly expressed  by  those  words,  in  et  super  (the  plain- 

1  Reports  of  Cases  in  the  Law  of  Real  Property  and  Conveyancing, 
App.  24. 

2  Martin's  Conveyancer's  Recital  Book,  35  note  (1834). 

8  Hayes  &  Jarman  Forms  of  Wills,  98  note,  7th  ed.     See  also  7  Notes 
of  Cases,  377;  2  Robertson  Eccl.  Rep.  140;  Bigge  v.  Bigge,  9  Jurist,  192. 


THE  LAW  REPORTERS.  77 

tiff's  wife)  insultum  fecit;  but  it  was  strenuously 
objected  against  the  words  \i  et  armis,  because  there 
was  an  apparent  proof  of  the  consent  and  compliance 
of  the  woman,  and  that  baculi  giadii  et  cultelli  were 
improper  instruments  to  carry  on  an  amorous  corre- 
spondence. After  a  long  debate,  a  very  grave  la^-yer 
(whose  opinion  was  to  conclude  the  rest)  consented 
to  lay  down  the  cudgels,  but  would  not  leave  out  vi  et 
armis ;  and  his  reason  was,  because  they  must  keep 
up  to  the  ancient  and  approved  forms." 


IX  a  recent  text-book  is  this  typographical  error : 
"  It  is  quite  true  that  the  opening  of  a  new  ividow 
looking  into  the  grounds  of  another  may  not  only 
annoy  that  neighbor,  but  may  often  affect  tlie  value 
of  his  property.  But  the  law  of  England  considers 
that  no  injury."  ^ 

?«\ 

APEOHIBITION  was  granted  on  a  libel  for  say- 
ing "  He  has  no  sense,  is  a  dunce  and  a  block- 
head ;  I  wonder  the  bishop  would  lay  his  hands  on 
such  a  fellow  ;  he  deserves  to  have  his  gown  pulled 
over  his  ears  "  ;  because  a  parson  is  not  punishable  in 
the  Spiritual  Court  for  l)cing  a  dunce  or  a  blockhead, 
more  than  another  man.^ 

1  Tj'ler,  Treatise  on  the  Law  of  Boundaries,  etc.,  511),  citing  Joues  t». 
Ta[.liiif,',  12  C.  B.  JJ.  s.  842,  per  r.lackburn,  J. 

2  Coxcter  v.  Parbous,  11  Model.  Ill  note. 


78  CURIOSITIES    OF 

BY  an  appeal  of  death  private  prosecutors  could 
insist  on  a  second  trial  for  life  after  an  acquit- 
tal, and  could  exercise  or  withliold  according  to  their 
caprice,  or  temper,  or  cupidity,  the  divine  attribute 
and  royal  prerogative  of  mei'cy.  But  such  is  the 
force  of  judicial  habit  that  we  find  the  very  distin- 
guished Chief  Justice  Holt,  in  the  reign  of  Queen 
Anne,  declaring  from  the  bench,  "  I  wonder  that  any 
Englishman  should  brand  an  appeal  with  the  name 
of  an  odious  prosecution  ;  I  look  at  it  as  a  true  badge 
of  English  liberty."  But  after  the  celebrated  case  of 
Ashford  v.  Thornton,^  the  legislature  looked  u})on  this 
method  of  prosecution  in  an  entirely  different  light, 
and  it  was  abolished  by  59  Geo.  III.  ch.  46. 


SII^  MATTHEW  HALE  writes:  "  A  great  lawyer 
liath  been  much  blamed  for  burning  a  peer  on 
the  liand,  that  confessed  an  indictment  of  man- 
slaughter ;  and  it  was  the  only  error  of  note  that  the 
person  erred  in  to  my  observation."  ^ 

BEFORE  the  statute  30  Geo.  III.  women  from 
the  remotest  times  were  sentenced  to  be  burned 
alive  for  every  species  of  treason  ;  this  Blackstone  at- 
tributes to  the  regard  of  our  ancestors  for  "  the  decency 
due  to  the  sex."  ^ 

1  1  B.  &  Aid.  405  (1818)  8  4  Bl.  Comrn.  93. 

2  2  Hale  P.  C.  377. 


THE  LAW  REPORTERS.  79 

IT  is  often  said  satirically,  thougli  no  satire  was 
originally  intended,  that  corporations  have  no 
souls.  It  would  seem  that  no  argument  is  necessary 
to  prove  this  legal  axiom.  Chief  Baron  Manwood, 
however,  established  it  by  a  syllogism,  in  which  it  is 
not  easy  to  detect  any  fallacy.  "  The  opinion  of  Man- 
wood  C.  B.  was  this,  as  touching  corporations  ;  that 
tliey  were  invisible,  immortal,  and  that  they  had  no 
soul,  and  therefore  no  subpoena  lieth  against  them, 
because  they  have  no  conscience  nor  soul ;  a  corpora- 
tion is  a  body  aggregate ;  none  can  create  souls  but 
God;  but  the  king  creates  them,  and  therefore  they 
liave  no  souls.  And  this  was  the  opinion  of  ]\Iau- 
wood  Chief  Baron  touching  corporations."-^ 

Sir  Sampson  Darrell's  Case.^ 

SIB  SAMPSOX  DABBELL  was  fined  £5  for 
erecting  a  windmill  in  his  own  ground,  within 
the  forest,  and  Mr.  Attorney  Noy  said  it  ought  not 
to  be  done,  because  it  frighted  the  deer,  and  also  drew 
company  to  the  disquiet  of  the  game. 

>'< 

TI  I>EL  for  calling  a  man  a  knave :  prohibition  lies, 
-^  Ijcfxivse  in  the  time  of  Henry  VI.  knave  was  a 
good  addition.^ 

1  2  Rulstrofle,  233. 

2  \V.  .Jones,  293.     Transcribed  by  Mr.  Wallace  The  Reporters,  187, 
3d  od. 

8  Latch,  1.16.     1  Sidcrfin,  U9. 


80  CURIOSITIES   OF 

THE  prnposition  for  conducting  all  law  proceed- 
ings in  English  was  most  strenuously  opposed. 
The  reporters,  who  delighted  in  the  Norman  French, 
were  particularly  obstreperous.  "  I  have  made  these 
Eeports  speak  English,"  says  Style  in  his  preface 
(A.  D.  1G58),  "not  that  I  believe  they  will  be  thereby 
more  generally  useful,  for  I  have  been  always  and  yet 
am  of  opinion,  that  that  part  of  the  common  law 
which  is  in  English  hath  only  occasioned  the  making 
of  unquiet  spirits  contentiously  knowing,  and  more 
apt  to  offend  others  than  to  defend  themselves ;  but 
I  have  done  it  in  obedience  to  authority,  and  to  stop 
the  mouths  of  such  of  this  English  age,  who,  though 
they  be  confessedly  different  in  their  minds  and  judg- 
ments, as  the  builders  of  Babel  were  in  their  language, 
yet  do  think  it  vain,  if  not  impious,  to  speak  or  un- 
derstand more  than  their  own  mother  tongue."  And 
Bulstrode,  in  the  preface  to  the  Second  Part  of  his 
Eeports,  says  "that  he  had  many  years  since  per- 
fected the  work  in  French,  in  which  language  he  had 
desired  it  might  have  seen  the  light,  being  most  proper 
for  it,  and  most  convenient  for  the  professors  of  the 
law." 

TWISDEN"  JUSTICE  said  he  remembered  that  a 
shoemaker  broutijht  an  action  against  a  man  for 
saying  he  was  a  cobbler ;  and  though  a  cobbler  be  a 
trade  of.  itself,  yet  it  was  held  that  the  action  lay  in 
Chief  Justice  Glyn's  time.^ 

1  1  Mod.  19. 


THE  LAW  REPORTERS.  81 

KEKIFFOED,  an  attorney,  was  plaintiff  in  bat- 
tery, and  the  case  was  thus :  He  was  walking 
in  the  market  (as  attorneys  do  too  much),  and  the 
defendant  and  he  Iiad  some  angry  words  there,  upon 
which  the  defendant  did  press  to  go  by  him,  aud 
in  going,  by  reason  of  the  throng  of  people  there, 
he  jostled  the  plaintiff,  and  for  this  he  brought  this 
action,  in  v\-hich  if  an  assault  only  be  proved,  it  is  in- 
sufiicient,  and  holden  it  was  no  assault,  for  the  touch- 
ing him  or  jostle  was  to  another  end,  namely,  to  get 
by  him  in  the  throng,  and  not  to  beat  him,  etc.^ 


"IV  /TEMOEAXDUM.  — One  Mr.  Guye  Faux  of 
-LVJL  the  parish  of  Leathley,  a  cavilleer,  had  a  cause 
heard  about  a  plunder,  upon  Monday  this  week  after 
dinner,  and  was  well  in  court,  and  damage  against 
him  a  hundred  pounds,  aud  he  was  found  dead  next 
morning  upon  the  conceit  of  it,  as  was  supposed."  ^ 


THE  judge  did  put  back  the  jury  twice,  because 
they  offered  their  verdict  contrary  to  their  evi- 
dence, a,s  he  held  and  set  a  hundred-pound  fine  upon 
one  of  the  jury  who  had  departed  from  his  compan- 
ions ;  but  after,  upon  examination,  it  was  taken  off 
again,  for  that  it  did  appear  it  was  only  by  reason  of 
the  crowd,  and  some  of  his  fellows  were  always  with 
liim.''^ 

1  Clayton,  22.  2  Ibid.  no.  8  l),i,l.  31. 

4»  F 


82  CURIOSITIES  OF 

A  CASE  was  recently  determined  liy  tlio  Court 
of  Exchequer  Chaniljer  wldcli  in  the  opinion 
of  Mr.  Justice  Blackl jurn  involved  "  a  nice  and  puz- 
zling question."  The  question  was  whether  the  law  as 
to  the  liability  of  gratuitous  bailees  of  personal  prop- 
erty applied  to  a  building.  The  plaintiff  loaned  his 
shed  to  the  defendant  to  make  a  signboard,  and  D., 
a  carpenter  employed  by  the  defendant,  wliile  at 
work  lighted  his  pipe  from  a  match  with  a  shaving, 
which  he  dropped,  and  thereby  set  fire  to  the  shav- 
ings on  the  ground,  by  which  the  shed  was  liurned. 
A  majority  of  the  Court  of  Exchequer  Chamber, 
affirming  the  judgment  of  the  Court  of  Exchequer, 
held  that  the  defendant  was  not  liable,  on  the  ground 
that  the  loan  of  the  shed  was  a  mere  license  to  use 
the  shed,  revocable  at  any  time.^ 


IN  very  early  times  "  every  one  was  to  have  a  reme- 
dial writ  from  the  King's  Chancer}^  according  to 
his  plaint,"  of  which  the  following  is  the  most  an- 
cient form :  — 

Eex  etc.  [to  the  Judge.]  Questus  est  nobis  A. 
quod  B.  etc.  Et  ideo  tibi  (vices  nostras  in  liac  parte 
committentes)  preecipimus  quod  causam  illam  audias 
et  legitime  fine  decidas.*'^ 

1  Williams  v.  Jones,  3  H.  &  C.  256,  602  (1865).     Story  on  Bailments, 
§  22.3  a,  8th  ed. 

2  MiiTour  of  Justices,  8. 


THE  LAW  REPORTERS.  83 

IN  Manby  v.  Scott,^  Mr.  Justice  Wyndham  speci- 
fies the  following  among  the  "many  inconven- 
iences which  must  ensue  "  if  the  husband  shall  be 
bound  by  the  contract  of  the  wife :  — 

1.  The  husband  will  be  accounted  the  common 
enemy;  and  the  mercer  and  the  gallant  will  unite 
with  the  wife,  and  they  will  combine  their  strength 
against  the  husband. 

3.  "Wives  will  be  their  own  carvers,  and,  like  hawks, 
•will  fly  abroad  and  find  their  own  prey. 

4  It  shall  be  left  to  the  pleasure  of  a  London 
jury  to  dress  my  wife  in  such  apparel  as  they  think 
proper. 

0.  Wives  who  think  that  they  have  insufficient  will 
have  it  tried  by  a  mercer  whether  their  dress  is  not 
too  mean,  and  this  will  make  the  mercer  judge 
■whether  he  will  dispose  of  his  own  goods  or  not. 


IN  the  case  of  Hookes  v.  Swaine,^  Twisden  Justice 
said  he  remembered  a  nice  case.  Sir  William 
Fish  was  bound  by  obligation  to  pay,  on  a  certain  day, 
in  Gray's  Inn  Hall,  £  50  generally,  witliout  saying  of 
money ;  and  therefore  upon  the  day  when  the  gentle- 
men were  at  supper,  Sir  William  came  in,  and  ten- 
dered fifty-pound  weight  of  stone;  and  adjudged  no 
tender. 

1  1  Si.lerfin,  109  (1662,  1663).    2  Smith  L.  C.  418,  6tli  London  ed. 
a  1  Siderfni,  151. 


84  CURIOSITIES   OF 

SO  completely  does  a  pardon  of  treason  or  felony 
extinguish  the  crime,  that  wlien  granted  to  a 
man,  even  after  conviction  or  attainder,  it  Avill  enable 
him  to  have  an  action  of  slander  against  another  for 
calling  him  traitor  or  felon ;  "  because  the  pardon 
makes  him  as  it  were  a  new  man,  and  gives  him 
a  new  caj^acity  and  credit."  ^  "  In  the  eye  of  the  law 
the  offender  is  as  innocent  as  if  he  had  never  com- 
mitted the  offence."  2 


IN  the  Year-Books,  30  &  31  Edw.  I.  pp.  503  -  507, 
is  tliis  case  :  A  man  was  arraigned  for  felony,  but 
on  producing  a  charter  of  pardon  was  discharged. 
Auotlier  man  was  arraigned  for  liarboring  him,  and, 
notwithstanding  the  acquittal  of  the  principal,  he  was 
made  to  pay  a  fine.  The  report  concludes  thus :  "  Note, 
the  Justices  did  this  rather  for  the  King's  profit  than 
in  accordance  with  law ;  for  they  gave  this  decision 
'  in  terrorem.' " 

/)\ 

A"\VO]\IAN  lilielled  in  the  Arches  against  another 
for  calling  of  her  jade,  and  a  proliibition  was 
prayed  and  granted,  because  the  words  were  not  defam- 
atory. And  Reeve  said  that  for  whore  or  bawd  no 
prohibition  would  lie,  but  they  doubted  of  quean.^ 

1  2  Hawkins  P.  C.  CIi.  37,  §  48.     Vol.  II.  p.  548,  ed.  Curwood. 

2  i:.x  i)arte  Giiilaii.l,  4  Wallace,  p.  380.     United  States  v.  Padelford,  9 
Wallace,  p.  542. 

8  March,  pi.  235. 


THE  LAW  REPORTERS.  85 

AX  action  of  false  imprisonment  brought  against 
a  constable,  who  pleaded  not  guilty,  the  defend- 
ant did  sho\y  in  evidence,  that  he  came  to  search 
in  time  of  the  plague  for  lodgers  in  the  town,  and  he 
found  a  stranger  and  questioned  him  which  way  he 
'came  into  the  town;  who  answered,  Over  the  bridge, 
and  the  judge  conceived  this  to  be  a  scornful  answer 
to  an  officer,  and  because  he  had  no  pass,  but  trav- 
elled without  one,  and  gave  such  an  answer,  the  de- 
fendant did  offer  to  apprehend  him,  and  the  plaintiff 
thereupon  being  present  said  to  the  defendant,  He 
shall  not  go  to  prison,  but  yet  offered  to  pass  his  word 
for  his  forthcoming,  upon  which  the  defendant  did 
commit  the  plaintiff,  and  it  was  ruled  upon  evidence 
there  was  good  cause  to  commit  the  j)laintiff  for  oppos- 
ing the  constable,  though  but  verbally,  in  his  office, 
who  is  so  ancient  an  officer  of  the  Commonwealth.^ 


IF  B.  have  a  right  of  entry  into  his  house,  lie  ought 
to  have  a  common  entrance  at  the  usual  door,  and 
sliall  not  be  made  to  enter  at  a  hole,  a  back  door,  or  a 
cliimney ;  and  if  they  leave  the  common  door  open 
and  make  a  ditch,  so  that  B.  cannot  enter  vntlioat 
slcqypin/j,  the  condition  is  broken.  So  if  I  am  obliged 
to  suffer  J.  S.  to  liave  a  way  over  ray  land,  and  \\  hen 
I  see  him  coming,  I  take  liim  by  the  sleeve  and  say  to 
him,  "Come  not  tliere ;  for  if  you  do,  I  will  jiuU  you 
by  the  ears,"  the  conditicjn  is  bnjken.^ 

1  SlicflTcld's  Case,  Clayton,  10.  ^  Lutcli,  17. 


86  CURIOSITIES   OF 

THERE  are  some  things  personal,  and  so  insepara- 
bly connected  to  a  man's  person,  that  he  cannot 
do  them  by  another ;  as  the  doing  of  homage  fealty. 
So  it  is  holden  that  a  lord  may  beat  liis  villein, 
for  cause  or  without  cause,  and  the  villein  is  without 
remedy  ;  but  if  the  lord  command  anotlier  to  beat  him 
wdthout  cause,  who  does  accordingly,  the  villein  shall 
have  an  action  of  Ijattery  against  him.  So  if  the  lord 
distrain  his  tenant's  cattle,  when  nothing  is  behind, 
yet  the  tenant,  for  the  reverence  and  duty  that  ajjper- 
tains  to  the  lord,  shall  not  have  trespass  vi  et  armis 
against  him;  but  if  the  lord  command  his  bailiff 
or  servant  to  distrain,  secus.^ 


IN"  the  report  of  one  of  the  Scotch  Appeal  Cases  in 
the  House  of  Lords,  we  find  this  marginal  note :  — 

"Per  The  Lord  Chancellor:  Mrs.  lleid  is  to  be 
pitied  for  the  course  into  which  she  has  been  dragged, 
evidently  without  any  consciousness  on  her  part  of 
the  extreme  folly  of  these  proceedings."^ 

And  in  the  very  next  case  in  the  same  volume  are 
these,  and  only  these,  marginal  notes  :  — 

"  Per  Lord  Chelmsford  :  It  is  really  lamentable  to 
think  of  the  enormous  expense  incurred  in  this  case." 

"  Per  Lord  Westbury :  Such  things  occui'  in  the 
appeals  from  Scotland  day  by  day."  ^ 

1  Comb's  Case,  9  Rep.  76  a. 

2  Keith  V.  Reid,  Law  Rep.  2  H.  L.  Scotch,  39  (1870). 
8  Fruser  v.  Crawford,  Law  Rep.  2  H.  L.  Scotch,  42. 


THE  LA  W  REPORTERS.  87 

"nr)EAYING  general  relief,"  said  Lord  Hardwicke,i 
JL  "is  sufficient  though  the  plaintiff  should  not 
be  more  explicit  in  the  [particular]  prayer  of  the  bill ; 
and  Mr.  Eobins,  a  very  eminent  counsel,  used  to  say, 
'  General  relief  was  the  best  prayer  next  to  the  Lord's 
Prayer!'" 

I^nT  his  Abridgment,^  Rolle  says,  "  Jeo  aie  oie  mon 
seigneur  Coke  a  citer  two  verses  pur  ceo  de  Sir 
Thomas  Moore :  — 

'  Three  things  are  to  be  helpt  in  conscience  : 
i'laud,  accident,  and  tilings  of  conhdence.'  " 


ONE  suggestion  by  ]\Ir.  John  Eeeves,  the  author 
of  the  "  History  of  English  Law,"  in  his  elabo- 
rate essay  on  the  effect  of  the  Treaty  of  Peace  of 
1783,  is  amusing  enough  to  be  quoted :  "  I  have 
heard  it  asked,  if  the  king  was  to  send  his  writ  to 
command  the  attendance  of  Mr.  Jefferson  in  this 
kingdom  ?  —  I  agree  he  would  not  come ;  but  that 
would  be  no  test  of  the  law  upon  the  subject;  it  is 
an  incDUvenience  in  point  of  fact."  The  case  thus 
j)ut  recalls  tliat  of  Glendower  and  Hotspur  :  — 

rHendmvcr.    I  can  call  spirits  fioni  the  vasty  deep. 
IfdiHpar.    Why,  so  can  I,  or  so  can  any  man  ; 
liut  will  they  come  when  you  do  call  for  them  ?^ 

1  Cook  r.  Martyn,  2  Atkyns,  3.  '■i  1  Itcllo  Ahr.  374. 

*  First  I'iirt  of  Kinj;  Henry  IV.  Act  IFF.  Sfeno  1.     l'"or  tliis  ]iassa;(e  I 
am  indebted  to  a  writer  in  Tlie  American  Law  Kevicw,  Vol.  IV.  p.  802. 


88  CURIOSITIES   OF 

IN  The  Emperor  of  Austria  v.  Day,^  Lord  Campbell 
Lord  Chancellor  observed  :  "Notwithstanding  my 
sincere  respect  for  tlie  authority  of  that  great  Ameri- 
can jurist.  Justice  Story,  I  cannot  concur  with  him  in 
his  recommendation  of  a  mysterious  oljscurity  to  be 
preserved  by  courts  of  equity  respecting  special  in- 
junctions, and  the  caution  which  should  make  them 
'  decline  to  lay  down  any  rule  which  sliall  limit  their 
power  and  discretion  as  to  the  particular  cases  in 
which  such  injunctions  should  be  granted  or  with- 
held.' ^  The  recommendation  of  mystery  and  obscu- 
rity in  treating  of  judicial  jurisdiction  is  only  fit  for 
the  Star  Chamber,  which  was  called  'a  Court  of 
Criminal  Equity.' " 

'TTIHE  case  seems  to  fall  ver)'-  much  within  the 
-J-  quaint  expressions  of  Lord  Hobart  in  The 
Earl  of  Clanrickard's  Case,^  where  that  very  learned 
judge  says  :  '  I  do  exceedingly  commend  the  judges 
that  are  curious  and  almost  subtle,  astuti  (which  is 
the  word  used  in  the  Proverbs  of  Solomon  in  a  good 
sense  when  it  is  to  a  good  end),  to  invent  reasons  and 
means  to  make  acts  according  to  the  just  intent  of 
the  parties,  and  to  avoid  wrong  and  injury  wliich  by 
rigid  rides  might  l)c  wrought  out  of  the  act.'  "  * 

1  3  De  Gex.  Fisher  &  Jones,  211,  238. 

2  Story  Kqnity  .Turisprudence,  Vol.  II.  §  959  b. 
8  Hobart,  277. 

4  Judgment  of  Byles  J.  in  Hayue  v.  Cummings,  16  C.  B.  N.  S.  p. 

428. 


THE  LAW  REPORTERS.  89 

THE  manner  in  which  Sir  John  Strange  occasion- 
ally comments  on  the  opinion  of  the  court,  in 
his  Eeports,  is  quite  amusing.  To  a  remark  of  the 
Court  he  appends  the  following  note :  "  It  was  only 
;Mr.  J.  Wright  who  said  this ;  and  see  The  King  v. 
The  Inhabitants  etc.  of  Bishopside,  Trin.  T.  1755. 
B.  E.  adjudged,  '  contra ' :  and  in  reference  to  another 
part  of  the  same  opinion,  he  says :  '  It  was  only  Mr. 
J.  Chappie,  who  said  this :  and  he  was  WTong ;  for 
the  Act  expressly  requires '  etc." 


IX  ]\Ianhy  v.  Scott,^  among  the  reasons  for  the 
second  "  point  there  established,"  it  is  said :  "  In 
the  Spiritual  Court,  such  bad  women  as  have  violated 
their  vows  shall  have  such  provision  as  clerks  con- 
vict,2  and  shall  be  fed  with  the  bread  of  affliction  and 
the  water  of  adversity." 


"  rrillE  law  did  not  condescend  to  take  notice  of 
-L    base  animals.     A  dog  was  not  the  subject  cf 
larceny  at  common  law,  because,  as  it  was  said,  a 
man  shall  not  hang  for  a  dog.     7  liep.  18  a."  ^ 

1  1  Sidcrfin,  109.    2  Smith  L.  C.  422,  6th  London  ed. 

2  Staunforde,  140. 

8  Willcs  J.  in  Kegina  r.  Martin,  Law  Hop.  1  C.  C.  p.  50.    See  Regina 
•.  Robinson,  Bell  C.  C.  34. 


90  CURIOSITIES   OF 

IN  the  reign  of  Henry  VIII.  a  statute  was  jDassed, 
A\-lierel)y  it  was  enacted  that  every  woman  about 
to  be  married  to  the  King,  or  any  of  his  successors, 
not  being  a  true  maid,  sliould  disclose  licr  disgrace  to 
him  under  the  penalty  of  treason ;  and  that  all  other 
persons  knowing  tlie  fact,  and  not  disclosing  it,  should 
be  subject  to  the  lesser  penalty  of  misprision  of 
treason.^  This  law,  which  was  afterwards  repealed, 
as  "trespassing  too  strongly  as  well  on  natural  justice 
as  female  modesty,"  ^  continued  in  force  during  the 
remainder  of  this  reign,  and,  according  to  Lord 
Campbell,^  "  so  much  frightened  all  the  spinsters  at 
Henry's  court,  that,  instead  of  trying  to  attract  his 
notice,  like  Anne  Boleyn,  Jane  Seymour,  and  Cath- 
erine Howard,  in  the  hope  of  wearing  a  crown,  they 
shunned  his  approach  as  if  he  had  been  himself  the 
executioner,  and  they  left  the  field  open  for  widows, 
who  could  not  by  any  subtlety  of  Crown  la\^yers  be 
brought  witliin  its  operation." 


THEEE  is  a  curious  case  in  Coke's  "  Second 
Institute,"  p.  562,  ed.  1797.  Indictment  against 
a  parson  for  conspiracy,  who  pleads  that  he  was 
"communis  advocatus,"  and  so  justified  as  attorney 
to  tlie  other.  It  was  found  that  he  was  "  communis 
advocatus,"  and  not  guilty 

1  Statutes  of  tlie  Realm,  Vol.  IV.  p.  859. 

2  1  Bl.  Coniin    222. 

8  Lives  of  the  Lord  Chancellors,  Vol.  IL  p.  108, 5th  ed. 


THE  LAW  REPORTERS.  91 

IN  the  qiiaiiit  language  of  Hide  J.  in  Manby  v. 
Scott,  in  the  Exchequer  Chaniber,^  if  "  the  wife 
will  have  a  velvet  gown  and  a  satin  petticoat,  and 
the  husband  thinks  mohair  or  farendon  for  a  gown, 
and  watered  tabby  for  a  petticoat,  is  as  fashionable, 
and  fitter  for  his  quality,  who  is  to  decide  the  con- 
troversy ?  Xot  the  wife,  nor  a  jury  it  may  be  con- 
sisting of  drapers  and  milliners,  but  the  husband."  ^ 


IX  the  trial  of  Algernon  Sidney,  in  one  respect 
counsel  deserved  rebuke,  and  even  Jeffries  was 
not  unjust  in  administering  it.  Lord  Cliief  Justice : 
"  Look  you,  gentlemen  of  the  jury.  There  are  some 
gentlemen  at  tlie  bar,  as  we  are  informed,  are  apt  to 
whisper  to  the  jury.  It  is  no  part  of  their  duty ; 
nay,  it  is  against  their  duty."  ^ 


NOY  reports  a  case  in  the  Star  Chamber  as 
follows :  "  The  defendants  upon  a  riot,  in  de- 
stroying sixteen  foot  of  a  hedge  for  a  commoner. 
There  they  were  fined  every  one  40  s.  And  the  plain- 
tiff for  suing  in  that  court  for  tliat  riot  was  fined  £  20. 
And  so  both  parties  were  fined,  which  was  seldom 
seen  before."^ 

1  1  Mo.l.  124,  138. 

2  Quoted   in  the  Judpnent  of  Blackburn  .1.  in   IJazcley  c.  Forder,   9 
Be»t&  Smitli,  p.  C04;  Law  Hep.  3  (I.  15.  p.  0G4. 

8  9  Ilowell  State  Trials,  837. 
*  Bellcw  r.  IJullocke,  Noy,  101. 


92  CURIOSITIES   OF 

IN"  Tremaine's  "  Placitae  Corona^,"  pp.  34,  35,  is  a 
precedent  of  an  indictment  auainst  Sir  John 
Johnston,  a  Scotch  knight,  for  stealing  and  marrying 
one  Mary  AVharton,  an  lieiress,  "to  the  great  dis- 
pleasure of  Almighty  God,  to  the  great  disparagement 
of  the  said  ]\Iary,  and  to  the  utter  sorrow  and  afflic- 
tion of  her  friends."  Treniaine  writes  in  a  note  : 
"  Sir  John  Johnston  was  a  stranger  to  the  English 
laws,  and  when  he  was  called  to  judgment  Avas  much 
surprised,  and  asked  if  it  was  a  hanging  matter;  hut 
nevertheless  sentence  was  given  against  liini,  and  lie 
was  executed  on  a  gibbet  before  the  lady's  door  in 
Great  Queen  Street." 

^\ 

IN"  an  appeal  of  death,  the  defendant  waged  battel, 
and  was  slain  in  the  field ;  yet  judgment  was 
given  that  he  should  be  hanged,  which  the  judges 
said  was  altogether  necessary,  for  otherwise  the  lord 
could  not  have  a  writ  of  escheat.^ 


IX  the  Year-Book,  22  Henry  YI.,  we  find  counsel 
responding  to  one  of  the  judges,  who  was  putting 
a  case  to  him  from  the  bench  about  making  a  view  in 
assize  :  "  En  le  nom  de  Dieu,  Sir,  comment  poit  le 
vieu  estre  fait  en  ce  cas  ? "  ^ 

1  Co.  Litt.  390  note. 

2  22  IIcu.  Vr.  p    11,  .ibout  the  middle  of  the  page,  quoted  in  The 
Reporters,  73,  3(1  ed. 


THE  LAW  REPORTERS.  93 

COOPEE  brought  an  action  upon  the  case  against 
Witham  and  his  wife,  for  that  the  wife,  mali- 
ciously intending  to  marry  him,  did  often  affirm  that 
she  was  sole  and  unmarried,  and  importuned  et  stre- 
nue  requisivit  the  plaintiff  to  marry  her;  to  wliich 
affirmation  he  gave  credit,  and  married  her,  when  in 
facto  she  was  wife  to  the  defendant;  so  that  the 
plaintiff  was  much  troubled  in  mind,  and  put  to  great 
charges,  and  much  damnified  in  his  reputation.  He 
had  a  verdict,  but  no  judgment;  for  by  Twisden 
Justice  the  action  lies  not,  because  the  thing  liere 
done  is  felony :  no  more  than  if  a  servant  be  killed, 
the  master  cannot  have  an  action  per  quod  servitium 
amisit,  quod  curia  concessit.^ 


IX  an  early  case  in  Massachusetts,^  Mr.  Justice 
Parker  expressed  his  opinion  in  the  following 
forcible  language :  "  It  would  seem  a  disgraceful  occu- 
pation of  the  courts  of  any  country  to  sit  in  judg- 
ment between  two  gamblers,  in  order  to  decide  which 
was  the  best  calculator  of  chances,  or  which  had 
the  most  cunning  of  the  two.  There  cOuld  be  but 
one  step  of  degradation  below  thisj  which  is,  that 
the  judges  should  be  the  stakeholders  of  the  par- 
ties." 

1  1  Sidcrfin,  375. 

'  Amory  v.  Oilman,  2  Mass.  p.  6. 


94  CURIOSITIES   OF 

IN  a  case  in  Goulclsborough,  p.  96,  one  of  tlie  coun- 
sel said  that  he  had  searched  all  tlie  hooks,  and 
"  there  is  not  one  case  "  etc. ;  to  which  Chief  Justice 
Anderson  responded :  "  AMiat  of  that  ?  Shall  not  we 
give  judgment  because  it  is  not  adjudged  in  the  hooks 
before  ?  We  will  give  judgment  according  to  reason  ; 
and  if  there  be  no  reason  in  tlie  books  I  will  not 
regard  them."  ^ 


"  /~\N'E  of  the  cases  in  Littleton,"  says  Mr.  Wal- 
Vy  lace,^  "  would  present  but  a  bad  idea  of  the 
manners  at  Oxford  in  1625.  AVe  find  at  least  the 
Principal  of  St.  Mary's  Hall  libelling  one  of  the 
Masters  of  Art,  and  a  Commoner  of  the  same  Hall, 
'  pur  ceo  que  il  appel  luy  Red  Nose,  Mamsey  Nose, 
Copper-nose  Knave,  Rascal,  and  Base  Fellow  et  autres 
words  non  dissonant.'  ^ 

"  Another  case  ^  si)eaks  as  ill  of  the  behavior  of 
communicants  in  those  days  of  Archbishop  Laud. 
Tlie  Reverend  Mr.  Burnet  sues  one  Symons  in  the 
High  Commission  Court,  '  pur  ces  que  appel  luy  fool 
en  leglise  et  dit  a  lui  Sin-ah !  Sirrah ! '  and  because, 
moreover,  he,  Burnet,  being  vicar  there,  Symons,  at 

1  "  Though  a  case  is  of  first  impression,  if  it  shows  a  conciiiTence  of 
loss  and  dainage  arising  from  the  act  complained  of,  the  action  will  be 
maintainable."  Lord  Campbell  Lord  Chancellor  in  Lynch  v.  Knight, 
9  House  of  Lords  Cases,  577. 

2  The  Reporters,  19.3,  3d  ed. 

8  Ralph  Bradwell's  Case,  Littleton,  9. 
*  Burnet  v.  SjTDons,  Littleton,  154. 


THE  LAW  REPORTERS.  95 

AYhitsuntide,  after  the  Communion  was  ended,  took 
the  cup  and  drank  all  the  wine  that  was  left ;  and 
that,  when  Mr.  Burnet  took  the  cup  from  him, 
'  Symons  \dolently  reprise  ces  hors  de  ses  mains 
arriere  in  facie  Ecclesise  devant  que  les  parishioners 
fueront  tons  dehors  leglise.'  It  is  curious,  and  per- 
haps worth  noting,"  continues  Mr.  Wallace,  "  that  the 
court  decided  that  all  the  wine  that  was  left  after  the 
Communion  belonged  to  the  parson.  The  same  dec- 
laration will  be  found,  I  believe,  in  the  rubric  to  the 
Book  of  Common  Prayer,  printed  in  the  time  of 
Charles  II.  It  shows  the  doctrine  of  that  day,  though 
at  present  a  special  and  more  reverent  provision  is 
made  for  the  case." 


IX  Ptolle's  Reports,  Vol.  I.  p.  286,  in  an  action  for 
words,  the  case  is,  "  Home  dit.  Sir  Th.  Holt  hath 
taken  a  cleaver  and  stricken  his  cook  upon  the  liead, 
so  that  one  side  of  the  head  fell  upon  one  shoulder, 
and  tlie  other  u])()n  the  otliur  shoulder,  et  ne  averr 
que  le  cook  fuit  mort;  et  pur  ceo  fuit  adjudge  nemy 
})on "  ;  the  cook's  death,  after  the  splitting  of  liis 
liead,  being  matter  of  inference  only.  Mr.  "Wallace 
says  this  case  may  be  commended  to  Mr.  Cbitty,  wlio 
may,  perhaps,  reconcile  tlie  matter  of  ])lea(biig  in- 
volved in  it  with  the  doctrines  of  Medical  Jurispru- 
dence. 


96  CURIOSITIES  OF 

THE  gravity  of  the  poor  laws  was  enlivened,  and 
the  sterility  of  settlement  cases  agreeahly  re- 
freshed, liy  a  catch  introduced  hy  Sir  James  Burrow 
into  tlie  report  of  The  King  v.  Norton.^  The  reporter 
says :  "  I  do  not  find  the  case  of  Shad  well  and  St. 
John's  Wapping  [which  had  been  cited  in  the  argu- 
ment] in  any  printed  book  or  manuscript.  But  I 
guess  it  to  be  the  same  case  which  I  have  heard  re- 
ported in  the  form  of  a  catch,  to  the  following  effect 
(if  my  memory  serves  me  right) :  — 

"  A  "Woman  having  a  Settlement, 

Married  a  Man  with  none  : 
The  Question  was,  he  being  dead, 

'  If  that  she  had,  was  gone.' 
Quotli  Sir  John  Pratt- —  '  lier  Settlement 

SusrENDED  did  remain 
Living  the  husband  :  But,  him  dead, 

It  doth  revive  again.'  " 

Chorus  of  Puisne  Judges. 
Living  the  Husband  :  But,  him  dead. 
It  doth  revive  again. 


IT  is  a  rule  of  law,  that  Idem  non  potest  esse  agens 
et  patiens  ;  and  therefore  a  man  cannot  present 
himself  to  a  benefice,  nor  sue'  himself.^  No  man  can 
summon  himself;  and  therefore  if  a  sheriff  suffer  a 
common  recovery,  it  is  error,  because  he  cannot  sum- 

1  Burrow  R.  C.  124.  8  Littleton,  147  b. 

2  Then  Lord  Chief  Justice. 


THE   LAW  REPORTERS.  97 

moil  himself.^  A  man  caunot  be  both  judge  and 
party  in  a  suit ;  and  tlierefore  if  a  judge  of  the  Com- 
mon Pleas  be  made  judge  of  the  King's  Bench, 
though  it  be  but  hac  vice,  it  determines  his  patent 
for  the  Common  Pleas;  for  if  he  should  be  judge 
of  both  benches  together,  he  should  control  his  own 
judgment;  for  if  the  Common  Pleas  err,  it  shall  be 
reformed  in  the  King's  Bench.^  Littleton,  Chief 
Justice  of  the  Common  Pleas,  was  made  Lord  Keeper, 
yet  continued  Chief  Justice.  And  Sir  Orlando  Bridge- 
man  was  both  Lord  Keeper  and  Lord  Chief  Justice 
of  the  Common  Pleas  at  tlie  same  time,  for  these 
places  are  not  inconsistent.^ 


A  few  years  ago,  a  learned  member  of  Parliament 
brought  in  a  bill  with  the  double  object  of 
providing  puljlic  prosecutors  for  England,  and  making 
it  a  statute  offence  for  a  servant  to  steal  his  master's 
corn  for  the  puqoose  of  feeding  the  master's  horse. 


A 


guest  comes  into  a  common   inn,  and  the  host 
appoints  him   lii.s  chamber,  and   in   tlie  night 

tlie  host  breaks  into  his  guest's  chamber  to  rob  liim  : 

tliis  is  burglary.^ 

1  Dyer.  1H8  a.     Owen,  51.  8  i  Si.leifin,  338,  366. 

2  Cro.  Car.  600.  ■*  Daltoii,  cap.  151,  in  nota. 

5  a 


98  CURIOSITIES  OF 

THE  plaintiff  having,  as  slieriff,  attached  among 
other  property,  two  hundred  pounds  of  candy, 
and  five  thousand  Spanish  cigars,  entrusted  the  same 
to  the  defendants,  taking  from  them  a  receipt  in 
which  they  promised  to  deliver  the  same  to  him  on 
demand. 

ArPLETOX,  J. :  The  defendants  Avere  unable  at  any 
time  after  judgment  to  perform  their  contract.  The 
five  thousand  Spanish  cigars  were  sold ;  each  had  ac- 
complished its  destiny, 

tenuesque  recessit 
Consumpta  in  ventos.  —  Aeneid,  V.  526. 

The  candy  was  not  forthcoming.  Substitution  would 
not  answer  the  contract.  Performance  of  their  con- 
tract by  the  defendants,  by  their  own  acts,  was  out  of 
their  power.  Their  liability  was  fixed  upon  the  de- 
mand made  and  the  neglect  to  deliver.^ 


MR  JUSTICE  EMERY,  speaking  of  the  common 
law  of  husbantl  and  wife,  says  :  "  Tlie  whole 
theory  of  the  common  law  is  a  slavish  one,  compared 
even  with  the  civil  law.  The  merging  of  her  name 
in  that  of  her  husband  is  emblematic  of  the  fate  of 
all  her  legal  rights.  The  torch  of  Hymen  ser\-es  but 
to  light  the  pile  on  which  those  rights  are  offered  up."  - 

1  Gilmore  r.  :McXeil,  46  Maine,  532. 

2  State  r.  Burliiighani,  15  Maine,  lOG.     See  Marsliall  v.  Oakcs,  51 
Maine,  310. 


THE  LAW  REPORTERS.  99 

APPLETON,  C.  J.  "  The  defendant  borrowed  of 
the  plaintiff  nine  dollars  on  tlie  Lord's  Day. 
The  moral  obligation  to  repay  money  loaned  is  the 
same,  whether  the  loan  be  made  on  one  day  or  on  an- 
other. It  is  an  unfortunate  condition  of  the  law 
when  the  violator  of  its  commands  is  rewarded  by 
it  for  such  violation.  The  defendant  and  the  plaintiff 
are  alike  guilty  of  a  violation  of  law ;  the  former  in 
soliciting  a  loan,  the  latter  in  yielding  to  such  solici- 
tation. Both  are  liable  to  the  penalty  provided  by 
the  statute.  But  the  defendant,  while  guilty  with 
the  plaijitifl",  and  equally  amenable  to  the  penalties 
provided  by  the  statute,  is  rewarded  for  his  wrong- 
doing by  the  refusal  of  the  law  to  aid  in  the  enforce- 
ment of  a  debt  justly  due.  He  is  absolved  from  an 
indebtedness  created  at  his  own  instance  ;  while  his 
associate  in  guilt,  who  yielded  to  his  wishes,  is  liable 
to  a  double  penalty,  that  inflicted  by  law,  and  that 
arising  from  the  non-payment  of  money  loaned,  in  ad- 
dition to  the  sorrows  of  a  regretful  conscience. 
■'  Juvenal  indignantly  says  : 

multi 
Coramittunt  eadem  divcrso  crimina  fato; 
Illo  cruceni  sceleris  pretiutn  tulit,  liic  diadema. 

Sat.  XIII.  10;l-105. 

So,  now,  of  two  criminals  guilty  of  the  same  offence, 
one  is  punished  and  tlie  other  rewarded  by  the  law 
which  creates  the  oHence."  ' 

1  Mtader  c.  Wliite,  CO  Maine,  92. 


100  CURIOSITIES   OF 

THE  judges  determined  tliat  Lord  Audley's  wife 
miglit  give  evidence  against  liim,  for  having 
aided  one  of  liis  servants  in  committing  a  rape  upon 
herself.  They  held  that  where  a  wife  is  the  party 
grieved,  and  on  whom  the  crime  is  committed,  she 
is  to  he  admitted  a  witness :  and  a  curious  reason 
assigned  is,  that  in  such  a  case  a  villain  may  be  a 
witness  against  his  lord.^ 


IX  a  recent  case  ^  Mr.  Justice  Byles  observed :  "  I 
was  much  struck  with  the  quotation  from  Web- 
ster's Dictionary  where  one  of  the  definitions  given 
of  '  tenant '  is,  one  who  has  the  occupation  or  tem- 
porary possession  of  lands  or  tenements  wliose  title 
is  in  another."     The  quotation  is  from  Cowley  :  — 

0  fields,  0  woods,  0,  when  shall  I  he  made 
The  happy  tenant  of  your  shade  ? 


AS  a  general  rule  a  piece  of  paper  or  parchment, 
whether  blank  or  inscribed  with  any  characters, 
is  the  subject  of  larceny.  But  there  are  at  common 
law  two  exceptions :  first,  a  muniment  of  title  to  land, 
whicli,  it  is  held,  savors  of  the  realty ;  secondly,  a 
written  p)aper,  which  is  mere  evidence   of  a  right, 

1  3  Howell  State  Trials,  402,413.     Hutton,  115,  116. 

2  Birks  V.  Allison,  9  Jurist  N.  S.  G04,  605.     13  C.  B.  N.  S.  12,  23. 


THE  LAW  REPORTERS.  101 

resting  in  contract  only,  like  a  bill,  note,  bond,  or 
executory  agreement.  A  reason  given  in  both  these 
cases  is  this,  that  the  documents  are  of  no  use  to  any 
but  the  owner,  and  therefore  are  not  in  danger  of 
being  stolen.  On  which  it  has  been  well  remarked, 
that  "  if  I  steal  a  skin  of  parchment  worth  1 5.  it  is 
felony,  but  when  it  has  £10,000  added  to  its  value  by 
what  is  MTitten  upon  it,  then  it  is  no  offence  to  take 
it  away."  ^  These  exceptions  are  palpably  capricious 
and  unreasonable,  and  are  not  to  be  extended.  There- 
fore it  has  been  held  that  a  pawnbroker's  ticket  may 
be  the  subject  of  larceny.^ 


M    -L  wr 


X  Lambard's  "  Eirenarcha  "  p.  68,  A.  d.  1581,  it  is 
itteu :  "  Of  this  kind  of  punishment  [not  capi- 
tal] our  old  law,  making  pretious  estimation  of  the 
lives  of  men,  had  more  sortes  than  we  now  have,  as 
pulling  out  the  tongue  for  false  rumours,  cutting  off 
the  nose  for  adultery,  taking  away  the  privy  parts  for 
counterfeiting  of  money,  etc." 


IT  was  pleaded  on  belialf  of  a  Hundred  charged 
with  a  loss  incurred  by  robbery  on  Gad's  Hill, 
that,  time  out  of  mind,  it  had  been  customary  to  rob 
upon  Gad's  Hill. 

1  Hex  I'.  WfsllK'or.  2  Strnntjo,  ll.i3. 

2  lit'gina  r.  Morrison,  Hell  C.C.  158. 


102  CURIOSITIES  OF 

A  the  attorney  of  B.  brought  an  action  against 
C.  for  saying  to  B.,  "  Your  attorney  is  a  brib- 
ing knave,  and  hath  taken  twenty  pounds  of  you  to 
cozen  me."  Judge  Warlmrton  was  of  opinion  that  the 
words  were  not  actional  )le,  for  an  attorney  cannot  take 
a  brilje  of  his  own  client ;  but  Lord  Hobart  said  he 
might  when  the  reward  exceeds  measure,  and  the  end 
of  the  cause  of  reward  is  against  justice ;  as  if  he  will 
take  a  reward  to  raze  a  record  etc.  And  Hobart  re- 
ports that  after  he  had  spoken.  Justice  "Warburton 
said  that  he  began  to  stagger  in  his  opinion,  and  the 
plaintiff  had  judgment.^ 


"TTT"OEDS  spoken  of  an  attorney,  "  Thou  canst 
V  V  not  read  a  declaration,"  per  quod  etc.  The 
court :  The  words  are  actionable,  though  there  had 
been  no  special  damage;  for  they  speak  him  to  be 
ignorant  in  his  profession,  and  we  shall  not  intend 
that  he  had  a  distemper  in  his  eyes  etc.  —  Judgment 
was  given  for  the  plaintiff"^ 


LET  the  following  case  be  a  warning  to  all  bad 
cooks.  Trin.  8  Hen.  IV.  Eot.  47.  AVillielmus 
Milljurn  recuperat  per  juratam  per  billam  suam,  in 
qua  queritur  versus  Johannem  Cutting  Cook  de  eo 
quod    ipse    Johannes   apud  Westmonasterium  ven- 

1  Hobart,  8,  9.   1  RoUe  Ab.  53.  2  Jones  i?.  Powel,  1  Mod.  272. 


THE  LAW  REPORTERS.  103 

debat  dicto  "SYillielmo  nniim  caponem  pistum  cor- 
ruptilnlem  et  recalefactum,  qui  capo  assatiis  per 
qiiatuor  dies  in  Hospicio  Domini  liegis  et  iterum 
calefactus  et  pistus  extitit,  de  quo  postquam  edit 
vomituin  horriliilem  fecit,  ita  quod  infirmabatur  per 
duas  septimauas,  recuperat  iiiquam  viginti  solidos  per 
damnis.  And  Eolle  says  he  was  informed  that  it 
appears  upon  the  record  at  large  that  the  justices  in- 
creased the  damages.-' 


A  woman  shook  a  sword  in  a  cutler's  shop  against 
the  plaintiff,  being  on  tlie  other  side  of  the 
street ;  and  in  trespass  for  assault  and  battery,  there 
was  a  verdict  of  the  assault,  and  not  guilty  of  the 
battery.  It  was  prayed  to  give  no  more  costs  than 
damages,  and  so  granted ;  which  was  a  noble.^ 


AX  infant  brought  an  action  of  trespass  l)y  her 
guardian  ;  the  defendant  pleads  that  the  plain- 
tiff was  above  sixteen  years  old,  and  agreed  for  six- 
pence in  hand  paid,  that  the  defendant  have  license 
to  take  two  ounces  of  her  hair ;  to  which  the  plain- 
tiff demurred,  and  adjudged  for  lier,  I'or  an  iidant 
cannot  license,  though  she  may  agree  with  the  barber 
to  be  trimmed.^ 

»  1  Rolle  Ah.  «9.  2  Smith  v  Nowsam,  3  Keblo,  283. 

'  Scrr«g'.,':im  r.  Stewardson,  3  Kchlc,  809. 


104  CURIOSITIES   OF 

Avery  curious  document  has  Leen  issued  from 
the  Parliamentary  printing-office.  It  is  the 
bill  which  has  passed  the  Commons,  entitled  "An 
Act  to  repeal  certain  statutes,  which  are  sleeping  and 
not  in  use,"  and  it  is  made  singular  by  the  fact  that 
in  it  are  recapitulated  numerous  samples  of  ancestral 
w'isdom.  One  of  the  statutes  provides  "  that  no  man 
shall  ride  in  harness  within  the  realm  nor  with 
launcegays."  Another  says,  "the  rates  of  lal)orers' 
wages  shall  be  assessed  and  proclaimed  by  the  justices 
of  the  peace,  and  they  shall  assess  the  gains  of 
victuallers,  wdio  shall  make  horse-bread,  and  the 
weight  and  price  thereof."  A  third  defines  "  what 
sort  of  Irishmen  only  may  come  to  dwell  in  Eng- 
land "  (this  has  been  sleeping  a  very  long  time) ;  and 
a  fourtli  is  framed  to  prevent  a  butcher  from  slaying 
any  manner  of  beasts  within  the  walls  of  London. 

IN  the  Statutes  at  Large  some  funny  things  may 
be  found.  There  is  one  which  is  not  to  be 
brought  to  book,  and  must  be  given  as  a  tradition  of 
the  time  wlien  George  III.  was  king.  Its  tenor  is, 
that  a  bill  which  proposed,  as  a  punishment  of  an 
offence,  to  levy  a  certain  pecuniary  penalty,  one  half 
thereof  to  go  to  his  ^Majesty  and  the  other  half  to 
the  informer,  was  altered  in  committee,  in  so  far  that, 
when  it  appeared  in  the  form  of  an  act,  ihe  punish- 
ment was  changed  to  whipping  and  imprisonment, 
the  destination  being  left  unaltered. 


THE  LAW  REPORTERS.  105 

It  is  wonderful  that  sucli  mistakes  are  not  of 
frequent  occurrence  when  one  remembers  the  hot, 
hasty  work  often  clone  by  committees,  and  the  com- 
plete entanglements  of  sentences  on  which  they  have 
to  work.  Bentham  was  at  the  trouble  of  counting 
the  words  in  one  sentence  of  an  Act  of  Parliament, 
and  found  that,  beginning  with  "  Whereas  "  and  end- 
ing with  the  word  "  repealed,"  it  was  precisely  the 
length  of  an  orduiary  three-volume  novel. 


SIR  ]\IATTIIEW  HALE  did  not  extend  his 
supremacy  over  the  entire  See  of  the  Criminal 
Law  ;  and  therefore,  when  Lord  Campbell  whites  of 
his  History  of  the  Pleas  of  the  Crown,  that  it  is  a 
"  complete  digest  of  the  Criminal  Law  as  it  existed  in 
Sir  i\I.  Hale's  day,"  he  must  be  understood  as  express- 
ing, in  an  equitable  sense,  that  what  was  intended  to 

be  done  was  done.^ 

\</ 

A  translator  of  Latin  law-maxims  translated 
"  messis  sequitur  sementem,"  witli  a  fine  sim- 
plicity, into  "  the  harvest  follows  tlie  seed-time  "  ;  and 
"actor  sequitur  forum  rei,"  he  made  "the  agent  must 
Ije  in  court  when  the  case  is  going  on."  Copies 
of  the  book  containing  these  gems  are  exceedingly 
rare,  some  malicious  person  having  put  the  author  up 
to  their  absurdity. 

1  Kuinsof  Time,  by  Amos,  p.  3. 


106  CURIOSITIES   OF 

IN  the  Court  of  Queen's  Bench,  the  name  of  Mr. 
Charles  Dickens  having  been  called,  Lord  Camp- 
bell said:  "The  name  of  the  illustrious  Charles 
Dickens  has  been  called  on  the  jury,  but  he  has  not 
answered.  If  his  great  Chancery  suit  had  been  still 
going  on,  I  certainly  would  have  excused  him ;  but, 
as  that  is  over,  he  might  have  done  us  the  honor  of 
attending  here,  that  he  might  have  seen  how  we  went 
on  at  common  law." 

IF  one  that  is  seised  in  fee  of  an  orchard  makes  a 
feoffment  of  it  to  J.  S.,  and  goes  into  the  orchard 
and  cuts  a  turf  or  a  twig,  and  delivers  it  in  the  name 
of  seisin  to  the  feoffee  over  a  wall  of  the  same 
orchard,  the  feoffee  then  being  on  other  land  not 
mentioned  in  the  feoffment,  this  is  a  void  livery.^ 
As  to  when  a  man  shall  give  and  take  by  his  own 
livery,  see  Perkins,  §  205. 


A  searcher  after  something  or  other,  running  liis 
eye  down  the  index  of  a  law-book  through 
letter  B,  arrived  at  the  reference  "  Best  —  ]\Ir.  Justice 
—  his  great  mind."  Desiring  to  be  better  acquainted 
with  the  particulars  of  this  assertion,  lie  turned  to 
the  page  referred  to,  and  there  found,  to  his  entire 
satisfaction,  "  Mr.  Justice  Best  said,  he  had  a  great 
mind  to  commit  the  witness  for  prevarication." 

1  2  Rolle  Ab.  6,  pi.  5. 


THE  LAW  REPORTERS.  107 

"  r  I  THOUGH  the  court  may  order  an  election  nunc 
-JL  pro  tunc,"  said  Mr.  Justice  Maule,  "it  is 
beyond  the  power  of  the  courts,  or  of  an  Act  of  Par- 
liament to  recall  a  day  that  has  passed,  or  make  a 
thing  which  has  happened  not  to  have  happened." 

Non  tamen  irritum 
Quoclcunque  retro  est  efficiet.^ 

That,  accord  hig  to  the  writer,  is  beyond  the  power  of 
Omnipotence  itself.^ 

AlSr  innkeeper  recently  appeared  at  the  Borough 
Police  Court,  on  a  summons  which  charged 
him  with  having  his  house  open  before  one  o'clock 
on  19th  August,  that  being  "  the  Lord's  day."  It  was 
objected  by  the  counsel  who  appeared  for  the  de- 
fendant, that  the  term  "  Lord's  day  "  was  a  misnomer 
according  to  the  Act  of  Parliament,  which  specified 
"  Sunday"  ;  and  the  objection  being  sustained  by  the 
magistrates,  the  case  was  dismissed. 


LOED  HOLT,  after  stating  that  if  a  man  is 
wrongfully  brought  into  a  jurisdiction  and  there 
lawfully  arrested,  he  ought  to  bo  discharged,  lays 
down  the  Ijroad  position,  that  "  no  lawful  thing, 
founded  upon  a  wrongful  act,  can  be  supported."  ^ 

1  Ilor.  III.  Carm.  29,45. 

2  Mayor  etc.  v.  Oswald,  3  Kl.  &  Bl.  070. 

8  Liittiti  V.  Benin,  11  Mod.  60.    (Quoted  in  Ilsley  t).  Nichols.  12  Pick, 
p.  275. 


108  CURIOSITIES   OF 

MPv.  jrSTICE  ^VILLES,  to  illustrate  the  ab- 
surdity into  which  judges  would  inevitably 
fall,  unless  they  applied  the  rules  of  common  sense 
to  restrict  the  extent  of  liability  for  the  breach  of 
a  contract  of  the  class  then  under  consideration, 
obser^'ed :  "  Cases  of  this  kind  have  always  been 
found  to  be  very  difficult  to  deal  with,  beginning 
with  a  case  said  to  have  been  decided  about  two 
centuries  and  a  haK  ago,  where  a  man  going  to  be 
married  to  an  heiress,  his  horse  having  cast  a  shoe  on 
the  journey,  employed  a  blacksmith  to  replace  it, 
who  did  the  work  so  unskilfully  that  the  horse  was 
lamed,  and,  the  rider  not  arri\'ing  in  time,  the  lady 
married  another ;  and  the  blacksmith  was  held  liable 
for  the  loss  of  the  marriage."  ^ 


IX  the  report  of  a  case  in  the  State  Trials,  is  this 
passage :  "  First  came  the  execution,  then  the  in- 
vestigation, and  last  of  all,  or  rather  not  at  all,  the 
accusation." 


IX  aU  civil  acts  the  law  doth  not  so  much  regard 
the  intent  of  the  actor,  as  the  loss  and  damage 
of  the  party  suffering.^ 

1  British  Columbia  Saw  Mill  Co.  r.  Nettleship,  Law.  Rep.  3  C.  P. 
p.  508. 

2  Sir  T.  Ravm.  467. 


THE  LAW  REPORTERS.  109 

IX  •' Hortensius,"  p.  259  note,  a  most  amusing  in- 
stance of  identification  of  counsel  with  client 
is  related.  It  occurred  in  the  case  of  a  counsel  for  a 
female  prisoner  who  was  convicted  on  a  capital  charge, 
and  on  her  being  asked  what  she  had  to  say  why 
sentence  of  death  should  not  be  passed  upon  her,  he 
rose  and  said,  ''  If  you  please,  my  lord,  we  are  with 
cli  ild."  He  was,  however,  wrong  in  point  of  law,  — 
for  pregnancy  cannot  be  taken  advantage  of  in  arrest 
-f  judgment,  but  only  in  stay  of  execution. 

Vr 
?(\ 

IX  a  very  recent  case  in  Vermont,^  we  find  the 
gravity  of  the  discussion  relative  to  the  rights  of 
two  miU-owners  enlivened  by  a  quotation  from  Don 
Juan.  ]\Ir.  Justice  Barrett,  in  delivering  the  judg- 
ment of  the  court,  quotes  this  line,  — 

"  Saying  '  I  will  ne'er  consent,'  consented."  ^ 


IX  the  tenth  London  edition  of  Byles  on  BiUs,  p. 
62,  we  find  a  case  cited  from  "  1  ]\Iassey's  Ameri- 
can Eeports."     The  case  is  reported  in  4  ^lass.  -45. 


OXE  lialf  of  the  English  language,"  said  Baron 
Aldersou,  "  is  interpreted  by  the  context."  ^ 

1  Kimball  c.  Ladd,  42  yerraont,  p.  756. 

2  ••  And  whispering  '  I  will  ne'er  consent,'  —  consented."   Canto  L  St 
117. 

8  &  DowL  P.  C.  245. 


110  CURIOSITIES   OF 

THE  first  case  in  wliich  the  name  of  Chief  Justice 
Shaw  appears  in  the  lieports  is  the  well-known 
case  of  Younc;  v.  Aclanis.^  The  amount  invulved  was 
five  dollars.  The  case  was  this  :  A  note  was  payable 
in  foreign  hills.  The  promisor  paid  it,  and  the  note 
was  given  up ;  but  one  of  the  notes  given  in  payment 
was  a  counterfeit  bill.  The  payee  brought  his  action 
for  the  amount  of  the  counterfeit  note.  Mr.  Shaw, 
for  the  defendant  in  error,  put  his  defence  on  two 
grounds :  first,  that  an  action  for  money  had  and 
received  would  not  lie ;  and  secondly,  —  the  ground 
on  which  he  principally  relied, —  that  where  there 
was  no  fraud  and  no  express  undertaking,  and  both 
the  parties  were  equally  innocent,  no  action  would 
lie.  The  case  was  decided  for  the  defendant  in  error, 
the  plaintiff  in  the  court  below. 


"TTT"HAT  old  Eastell  says  in  the  following  passage 
VV  is  strictly  true :  "  Tliis  book  entituled  a 
collection  of  entrees,  contayneth  the  forme  and  maner 
of  good  pleading,  wliich  is  a  great  part  of  tlie  cunning 
of  the  law  of  England,  as  the  Right  worshipfull 
and  great  learned  man  Syr  Thomas  Litleton,  knight, 
sometime  one  of  the  Justices  of  the  Common  place, 
in  liis  third  book  of  Tenures,  in  the  chapter  of  con- 
firmation, saith  to  his  sonne."  ^ 

1  6  Mass.  182,  A.D.  isio. 

2  Rastell's  Entries,  written  in  1564. 


THE  LAW  REPORTERS.  HI 

IN  "  The  Merry  Wives  of  Windsor,"  Act  II.  Scene 
2,  where  Ford,  disguised,  tries  to  induce  Falstaff 
to  assist  hiin  in  his  intrigue  with  Mrs.  Ford,  and 
states  that  for  all  the  money  and  trouble  he  had  be- 
stowed upon  her  he  had  received  no  satisfaction,  nor 
promise  of  any  at  her  hands,  there  is  this  passage :  — 

Falstaff.  Of  what  quality  was  your  love,  then  ? 
Ford.  Like  a  fair   house,  built  upon  another  man's  ground  ;  so 
that  I  have  lost  my  edifice,  by  mistaking  the  i^lace  wlure  I  erected  it. 

In  1852,  by  a  decision  of  the  Supreme  Judicial  Court 
of  Massachusetts,  the  town  of  Sudbury  in  the  county 
of  ]\Iiddlesex  lost  a  school-house  "  by  mistaking  the 
place  where  they  erected  it."  ^  The  principle  is 
technical,  and  one  of  great  antiquity. 


AN  assault  was  laid  twenty -one  different  ways  in 
an  indictment.  And  on  motion  to  strike  them 
out,  the  court  thought  the  clerks  in  the  Crown  office 
ought  only  to  draw  the  indictments,  and  then  the 
court  could  punish  them  for  the  vexation.  ^ 


IT  lias  been  said  by  first-class  authority,  that  in  the 
opinion  in  the  case  of  Brattle  Square  Church 
V.  Grant,  ^  "  the  law  assumes  the  beauty  and  precision 
of  the  exact  sciences." 

1  First  Pari.sh  in  Sudbury  v.  .Jones,  8  Cush.  184. 

2  Rex  V.  Pewtress,  2  Strange,  1026.  8  3  (;,-,iy^  142. 


112  CURIOSITIES   OF 

LITTLETON  thus  describes  the  Aillciii  service  : 
Tenure  in  villenage  is  most  properly  M'hen  a 
villein  holdeth  of  his  lord,  to  ^yhom  he  is  a  villein, 
certain  lands  or  tenements  according  to  the  custom  of 
the  mannor,  or  otherwise,  at  the  will  of  the  lord,  and 
to  do  his  lord  villein  service ;  as  to  carry  and  re-carry 
the  dung  of  his  lord  out  of  the  city,  or  out  of  his  lord's 
mannor,  unto  the  land  of  his  lord,  and  to  spread  the 
same  upon  the  land,  and  such  like.^ 


LOED  BACON'S  enunciation  of  the  maxim.  In 
jure  non  remota  causa,  sed  proxima  spectatur, 
as  an  example  of  a  clear  and  concise  statement  of  a 
legal  proposition  has  never  been  surpassed  :  "  It  were 
infinite  for  the  law  to  judge  the  causes  of  causes, 
and  their  impulsions  one  of  another  :  therefore  it  cou- 
tenteth  itseK  with  the  immediate  cause;  and  judg- 
eth  of  acts  by  that,  without  looking  to  any  further 
degree." 

THE  obseq\uous  Parliament  of  Eichard  III.  passed, 
at  the  special  instance  of  that  famous  sovereign, 
a  number  of  private  Acts,  one  of  which  was  "  to 
prove  the  King  to  be  true  and  iindoubted  heir  to  the 
Crown,  and  to  make  his  brother's  children  bastards  " ; 
and  the  bulk  of  these  enactments  was  quite  in  ac- 
cordance with  this  sample. 

1  Tenures,  Lib.  11.  §  172. 


THE  LAW  REPORTERS.  113 

ME.  JUSTICE  CAEE  thus  concludes  his  judg- 
ment in  Watkins  v.  Crouch  :  ^  "It  wiU  be  ob- 
served that  I  have  cited  no  cases  in  support  of  this 
opinion ;  not  that  I  have  not  read,  and  considered, 
and  puzzled  myself  with  the  multitude  that  were 
commented  on  in  the  argument ;  but  because,  finding 
them  like  the  Swiss  troops,  fighting  on  both  sides,  I 
have  laid  them  aside  and  gone  upon  what  seems  to 
be  the  true  spirit  of  the  law." 


THE  rule  of  pleading  by  which  a  plea  in  abatement 
is  required  to  give  the  plaintiff  a  better  ^ait  is 
lucidly  stated  in  Britton:  "If  the  tenant  says  that 
he  does  not  hold  the  whole,  then  he  ought  to  declare 
who  holds  the  residue.  For  we  will  that  before  writs 
be  abated  for  a  fault  or  error,  the  tenants  inform  the 
plaintiffs  how  they  shall  purchase  good  writs."  ^ 


IN"  examining  of  a  witness,  counsel  cannot 
question  tlie  whole  life  of  the  witness,  as  that 
he  is  a  whoremaster  etc.  But  if  he  hath  done  sucli 
a  notorious  fact  which  is  a  just  exception  against  liini, 
then  they  may  except  against  him.  That  was  Onbie's 
case  of  Gray's  Inn ;  and  by  aU  the  judges  it  was 
agreed  as  before."  ^ 

1  5  Leigh,  p.  530. 

2  Hrittoii,  Liv.  III.  cli.  XXI.  Vol.  II.  p.  145,  ed.  Oxford,  1865. 
8  March,  pi.  1.30. 

H 


114  CURIOSITIES   OF 

LORD  COKE'S  commentary  on  Twyne's  Case 
sinks  into  utter  insignificance  in  comparison 
with  the  following  passage  addressed  to  the  Supreme 
Court  of  the  United  States,  in  solemn  argument : 
"  Fraud  vitiates  everything  into  which  it  enters.  It 
is  like  the  deadly  and  noxious  simoom  of  arid  and 
desert  climes.  It  prostrates  all  before  its  contami- 
nating touch,  and  leaves  death  only  and  destruction  in 
its  train.  No  act  however  solemn,  no  agreement 
however  sacred,  can  resist  its  all-destroying  power."  ^ 


THE  government  cannot  be  carried  on  without 
officers ;  therefore  a  refusal,  without  lawful  ex- 
cuse, to  accept  of  a  -public  office  to  which  a  person 
has  been  duly  elected,  is  indictable.  "  Happily  there 
is  in  this  country,"  observes  Mr.  Bishop,  "widely 
diffused,' a  commendable  willingness  to  do  this  duty  ; 
therefore  indictments  for  the  breach  of  it  are  rare."  ^ 


ANTIQUITY   of  time   fortifies   all   titles,   and 
supposeth  the  best  beginning  the  law  can  give 
them."  ^ 

1  Commercial  Bank  of  Manchester  v.  Buckner,  20  Howard,  p.  109. 

2  1  Conim  on  Crim   Law,  §  912  . 

8  Lord  Hobart,  in  Slade  v.  Drake,  Hobart,  295.  Quoted  in  the  con- 
sidered judgment  in  Ellis  v.  Mayor  etc.  of  Bridgnorth,  15  C.  B.  N.  S. 
p.  77. 


THE  LAW  REPORTERS.  115 

IN  striking  contrast  with  the  inflated  eulogies  pre- 
fixed to  the  posthumous  editions  of  some  of  the 
old  reporters  is  the  preface  to  Durnford  and  East, 
par  excellence  the  "  Term  Eeports  "  :  "  In  a  work 
of  this  kind  all  that  can  be  expected  is  accuracy ;  to 
polish  and  digest  properly  requires  long  time  and 
much  labo'ur."  For  care  and  accuracy  of  finish,  and 
a  matchless  propriety  of  style,  which  they  every- 
where maintain,  these  reporters  have  never  been 
surpassed. 


"  A  LMOST  all  who  sign  as  surety,"  says  Chief 
-^^A-  Justice  Appleton,  "have  occasion  to  remem- 
ber the  proverb  of  Solomon :  '  He  that  is  surety  for  a 
stranger  shall  smart  for  it,  and  he  that  hateth  surety- 
ship is  sui-e.'  But  they  are  nevertheless  held  liable 
upon  their  contracts,  otherwise  there  would  be  no 
smarting,  and  the  proverb  would  fail."  ^ 


"  "T  take  the  law  to  be,"  said  Mr.  Justice  Blackburn, 
-L  "  that  you  must  not  injure  the  property  of  your 
neighbour,  and  consequently,  if  filtli  is  created  on 
any  man's  land,  then  in  the  quaint  language  of  the 
report  in  .Salkeld,^  '  lie  wliose  dirt  it  is  must  keep  it 
that  it  may  not  trespass.'  "  ^ 

1  Mayo  V.  Hutchinson,  67  Maine,  p.  547. 

2  Tenant  v.  Goldwin,  Salk.  p.  361. 

8  Hodgkinson  v.  Ennor,  4  Best  &  Smith,  p.  241. 


116  CURIOSITIES    OF 

BELLEWE,  in  the  preface  to  his  Reports,  quaintly 
says  to  the  reader:  "Beseeching  you  that 
where  you  shall  find  any  faults,  which  eitlier  by  my 
insufficiency,  the  intricateness  of  the  work,  or  the 
Printer's  recldessness,  are  committed,  either  friendly 
to  pardon,  or  by  some  means  to  admonish  me  thereof." 


IN"  the  time  of  that  great  Admiralty  judge.  Lord 
Stowell,  such  was  the  paucity  of  legal  business, 
that  he  objected  at  first  to  Reports  of  the  proceedings, 
"  fearing  lest  the  Report  should  expose  the  nakedness 
of  the  land."  i 


ONE  TOPLIN,  an  attorney,  was  indicted  for  a 
common  barrator,  but  acquitted  by  the  jury. 
Yet  he  threatening  the  witnesses,  and  it  aiDpearing  to 
the  court,  that  he  was  a  notable  knave,  he  was  bound 
to  his  good  behaviour.2 


AN  old  English  statute  commenced  by  an  enact- 
ment relating  to  the  admission  of  attorneys, 
and  finished  by  -proliibiting  the  importation  of  horned 
cattle. 

1  Coote  New  Practice  of  the  Court  of  Admiralty,  Preface,  p.  v, 
1st  ed. 

2  Toplin's  Case,  Latch,  5 ;  Blackerby,  110. 


THE  LAW  REPORTERS.  117 

THE  following  case,  says  an  able  writer,  as  relat- 
ing to  the  official  conduct  of  one  of  the  greatest 
judges  that  ever  sat  on  the  King's  Bench,  cannot  fail 
to  give  rise,  in  the  mind  of  the  discerning  reader,  to 
many  interesting  reflections. 

In  the  month  of  ISTovember  1768,  a  woman  having 
appeared  before  two  of  his  Majesty's  justices  of  the 
peace  to  swear  a  child  against  the  secretary  to  Count 
Bruhl,  the  Saxon  minister,  the  Count  interfered,  and 
the  justices  were  afraid  to  proceed.  The  woman 
applied  to  Sir  Fletcher  Norton,  who  advised  that  a 
motion  should  be  made,  in  the  Court  of  King's  Bench, 
for  a  peremptory  mandamus  to  the  justices  to  proceed 
in  that  filiation.  The  motion  was  accordingly  made 
by  Mr.  Mansfield. 

The  Lord  Chief  Justice  Mansfield  received  it  with 
marks  of  anger  and  surprise  ;  he  said  he  did  not  un- 
derstand what  was  meant  by  such  collusive  motions, 
unless  it  was  to  draw  from  that  court  an  opinion  upon 
the  privileges  of  foreign  ministers,  which  they  had 
no  right  to  meddle  with  ;  that  the  motion  was  abso- 
lutely improper;  that  he  wondered  who  advised  it, 
and  that  he  certainly  should  not  grant  the  mandamus. 

Sir  Fletcher  Norton  then  got  up,  and  said  tliat  the 
party  was  his  client ;  that  his  Majesty's  subjects, 
when  injured,  had  a  right  to  redress  somewliere  or 
other ;  and  that  he  knew  of  no  place  where  such 
redress  could  be  legally  applied  for  or  ol)tained,  but 
in  the  Court  of  King's  Bench  ;  that  therefore  lie  liad 
advised  the  nioticjii. 


118  CURIOSITIES   OF 

Lord  Mansfield,  upon  this,  began  to  flourish,  in  his 
usual  style,  upon  the  sacred  privileges  of  ambassadors, 
the  law  of  nations  etc.  etc.,  repeated  something 
about  collusive  motions,  and  took  notice  that  the 
application  for  redress  ought  regularly  to  have  been 
made  to  Count  Bruhl,  or  to  his  Majesty's  attorney- 
general. 

j\Ir.  Justice  Aston  said,  deliberately,  that  he  agreed 
entirely  with  the  Lord  Chief  Justice,  and  that  the 
motion  ought  not  to  be  granted.    ' 

Sir  Fletcher  Norton  then  said  that  after  he  had 
declared  himself  the  adviser  of  the  motion,  he  did 
not  expect  to  have  heard  it  again  called  collusive; 
that  he  despised  and  abhorred  all  ideas  of  collicsion 
as  much  as  any  man  in  that  court ;  that  it  was  the 
first  time,  and  he  hoped  it  would  be  the  last,  that  he 
should  hear  the  Court  of  King's  Bench  refer  an 
injured  sul)ject  of  England  to  &  foreign  minister  or  to 
an  attorney-general  for  redress ;  that  the  laws  of  this 
country  had  not  left  his  Majesty's  subjects,  complain- 
ing of  injury,  without  a  legal  and  certain  protection  ; 
that  their  claim  was  a  claim  of  right,  upon  which  the 
Court  of  King's  Bench  had  full  authority  to  inquire, 
and  mv.st  determine;  that  if  his  clients  were  injured, 
he  should  always  bring  them  to  that  court  for  redress, 
let  who  would  have  committed  the  injury,  and  he 
would  take  care  that  that  court  should  do  them 
justice;  that  his  motion  was  proper  and  should  not 
be  withdra'vvn. 


THE   LAW  REPORTERS.  HQ 

Judge  Yates  then  said  that  the  reasons  offered  by- 
Sir  Fletcher  Norton  had  clearly  convinced  him ;  that 
he  had  not  the  least  doubt  of  the  authority  of  the 
court  to  protect  his  Majesty's  subjects ;  and  that,  for 
his  part,  he  should  never  refer  them  either  to  a 
foreign  minister  or  to  an  officer  of  the  Crown ;  that 
he  thought  the  motion  perfectly  regular,  and  that  it 
ought  to  be  granted. 

Judge  Aston  then  began  to  rpcant.  He  said  that 
he  was  always  glad  to  be  convinced  of  a  mistake,  and 
happy  in  having  an  early  opportunity  of  acknowledg- 
ing it ;  that,  from  wdiat  his  brother  Yates  and  Sir 
Fletcher  Norton  had  said,  he  saw  clearly  that  his 
first  opinion  had  been  erroneous,  and  that  he  agreed 
the  motion  ought  to  be  granted. 

Lord  iMansfield  then,  in  great  confusion,  said  that 
he  should  take  time  to  consider  of  it.  To  this  Sir 
Fletcher  Norton  replied,  that,  as  two  of  the  three 
judges  were  of  the  same  opinion,  the  motion  must  be 
granted  ;  but  that,  for  his  part,  if  his  lordship  wanted 
any  time  to  consider  whether,  when  a  subject  applied 
to  the  Court  of  King's  Bench  for  redress,  lie  was  or 
was  not  to  be  referred  to  a  foreign  minister  or  to  an 
attorney-general,  he  had  no  objection  to  allowing  him 
all  the  time  he  wanted. 

w 

"rr^^HE  sparks  of  all  sciences  in  the  world,"  said 
-L    Sir  Henry  Finch,  "  are  taken  up  in  the  ashes 
of  the  law." 


120  CURIOSITIES   OF 

IN  considering  presumptions  which  tend  to  estab- 
lish the  offence  of  adultery,  regard  is  had  to  the 
peculiar  modes  of  life  of  the  parties,  and  the  habits 
of  the  community  wherein  they  dwell.  Thus  where 
the  parties  are  near  of  kin,  or  sustain  the  relation  of 
physician  and  patient,  a  carnal  intercourse  will  be  less 
readily  inferred ;  and,  according  to  the  old  canonists, 
if  a  clergyman  is  found  embracing  a  woman  in  some 
secret  place  this  does  not,  as  in  the  case  of  other 
people,  prove  adultery,  for  "  he  is  not  presumed  to  do 
it  on  the  account  of  adidtery,  but  rather  on  the  score  of 
giving  his  benediction,  or  exhorting  her  to  penance,"  ^ 
—  "  a  good  illustration  of  the  principle,"  observes  Mr. 
Bishop,  "  though  few  judges  in  modern  times  would 
yield  so  much  to  clerical  virtue  as  this  application  of 
the  principle  implies."  ^ 

IN  the  Year-Book,  22  Edw.  lY.  20,  is  a  case  to  this 
effect :  "  The  Abbot  of  St.  Albans  sent  his  servant 
to  a  feme  covert  to  come  to  his  master  and  speak  with 
him.  The  servant  performed  his  command,  and  there- 
upon the  woman  came  with  him  to  the  Abbot ;  and 
when  tlie  Abbot  and  the  woman  were  together,  the 
servant  (who  knew  his  master's  will)  withdrew  from 
them,  and  left  tliem  two  in  the  chamber  alone ;  and 
then  the  Abbot  said  to  the  woman  that  her  apparel 
was  gross  apparel ;  to  whom  the  woman  said  that  her 

1  Ayliffe  Parergon,  51. 

2  Bishop  on  Marriage  and  Divorce,  Vol.  II.  §  631. 


THE  LAW  REPORTERS.  121 

apparel  was  according  to  her  ability,  and  according  to 
the  ability  of  her  husband:  the  Abbot  (knowing  in 
what  women  repose  delight)  said  to  her,  that  if  she 
would  be  ruled  by  him,  she  should  have  as  good  ap- 
parel as  any  woman  in  the  parish,  and  solicited  her 
chastity  :  when  the  woman  would  not  consent  to  him, 
the  Abbot  assaulted  her,  and  would  have  made  her 
an  ill  woman  against  her  will,  which  she  would  not 
suffer ;  whereupon  the  Abbot  kept  her  in  his  chamber 
against  her  wiU,  and  to  the  intent  etc.  The  husband, 
having  notice  of  this  abuse  to  liis  wife,  spoke  of  all 
this  matter,  and  said  that  he  would  have  his  action 
of  false  imprisonment  against  the  Abbot,  for  that  he 
had  imprisoned  his  wife  :  whereupon  the  Abbot  (add- 
ing one  sin  to  another)  sued  the  innocent  and  poor 
husband  for  defamation  in  the  Spiritual  Court,  because 
the  husband  had  published  that  the  Lord  Abbot  had 
solicited  his  wife's  chastity,  and  would  have  made  her 
an  ill  woman :  but  ui)on  all  this  matter  disclosed  to 
the  court,  tlie  husband  had  a  prohibition,  because  the 
husband  might  have  an  action  at  the  common  law  for 
this  assault  and  imprisonment  of  his  wife,  although 
he  then  had  no  action,  nor  perhaps  never  would ;  yet 
because  the  scandal  determinal)le  in  the  Ecclesiastical 
Court  was  upon  the  matter  disclosed,  mixed  with 
matter  determinable  at  the  common  law,  for  this 
cause,  upon  a  motion  made  by  tlie  Abbot's  counsel  to 
liave  a  '  consultation '  in  that  case,  it  was  denied  by 
the  court." 

6 


122  CURIOSITIES   OF 

I-  ORD  CHANCELLOIl  THURLOW  held,  -upon 
-^  the  construction  of  the  Statute  of  Frauds,  which 
requires  that  a  will  of  lands  shall  be  suhscribed  by 
the  witnesses  in  the  presence  of  the  testator,  that  a 
will  was  well  executed  where  a  lady  who  made  it, 
liaving  signed  it  in  an  attorney's  office,  got  into  her 
carriage,  and  the  carriage  was  accidentally  backed  by 
the  coachman  opposite  to  the  window  of  the  office, 
so  that,  if  she  had  l)een  inclined,  she  niiglit  liave  let 
down  the  glass  of  the  carriage  and  seen  the  witnesses 
subscribe  the  will.^ 


IN  Forsytli's  "  Constitutional  Law,"  p.  246  note,  a 
case  is  related  of  a  lady  of  rank  who,  being 
pressed  Ijy  her  creditors,  married  a  convict  in  prison 
under  sentence  of  transportation  ;  and,  having  become 
a  married  woman,  she  was  released  from  her  debts 
and  from  liability  to  arrest.  She  took  care,  however, 
not  to  follow  her  husband  to  a  penal  settlement. 


A"\VO]\IAN  of  full  age  contracted  matrimony 
with  a  lad  of  twelve  years,  and  solemnized  it 
in  the  face  of  the  church,  and  in  some  way  consum- 
mated it,  the  man  being  put  into  the  bed  with  her; 
and  he  died  before  the  age  of  consent.  In  a  cause  of 
dower  this  is  true  matrimony.^ 

1  Capson  V.  Dade,  1  Brown  C.  C.  99.    Dickens,  586. 

2  Dyer,  369  a.  pi.  48,  49. 


THE  LAW  REPORTERS.  123 

THE  indictment  against  Jolm  Bunyan  ran  thus : 
"  John  Bunyan  liatli  devilislily  and  perniciously 
abstained  from  coming  to  church  to  hear  Divine 
service,  and  is  a  common  upholder  of  several  un- 
lawful meetings  and  conventicles,  to  the  disturbance 
and  distraction  of  the  good  subjects  of  this  kingdom, 
contrary  to  the  laws  of  our  sovereign  lord  the  King." 
He  was  convicted  and  imprisoned  twelve  years  and 
six  months. 

Mr 

IX  the  course  of  the  argument  in  Lincoln  v.  Wright,^ 
Lord  Langdale  observed :  "  All  interrogatories 
must,  to  some  extent,  make  a  suggestion  to  the 
witness.  It  would  be  perfectly  nugatory  to  ask  a 
witness  if  he  knew  anything  about  something." 

1  4  Beavan,  p.  171.  With  regard  to  leading  questions  it  would  be  use- 
ful for  the  objector  to  remember  the  remark  of  Lord  Ellenborough:  "I 
wish  that  objections  to  questions  as  leading  might  be  a  little  better  con- 
sidered before  they  are  made.  It  is  necessary  to  a  certain  extent  to  lea'd 
the  mind  of  tiie  witness  to  the  subject  of  the  inquiry.  If  questions  arc 
asked  to  which  the  answer  j'es  or  no  would  be  conclusive,  they  would 
certainly  be  objectionable;  but,  in.  general,  no  objections  are  more 
frivolous."     Nicholls  v.  Dowding,  1  Starkie  N  P.  C.  81. 

In  this  connection  the  following  anecdote  is  worthy  of  transcription: 
Serjeant  Davy  was  often  employed  at  the  bar  of  the  House  of  Commons. 
On  one  occasion  he  called  a  witness  to  prove  some  point,  and  put  a 
question  of  no  great  importance  which  was  immediately  objected  to  by 
the  opposite  counsel.  The  counsel  on  both  sides,  according  to  the  usual 
form,  were  ordered  to  withdraw,  and  the  House  began  to  debate  on  the 
])ropriety  of  the  question.  The  discussion  lasted  for  some  hours ;  but  at 
length  the  dctennination  being  in  favor  of  Davy,  be  was  call  .d  in,  and 
the  Speaker  informed  him  he  might  put  the  question.  "  I  protest,  Mr. 
Sjicaker,"  replied  Davy,  "  I  entirely  f'*i-'jet  what  it  wa»y  Tliis,  as  may 
easily  be  believed,  threw  the  House  into  a  roar  of  laughter. 


124  CURIOSITIES   OF 

FORMERLY  if  fi  l)ill  was  brought  into  Parlia- 
ment at  the  close  of  the  session,  and  passed  on 
the  last  day,  which  made  an  act  previously  innocent 
criminal,  and  even  capital,  and  if  no  day  was  fixed 
for  the  commencement  of  its  operation,  it  was  con- 
sidered to  have  been  passed  on  the  first  day  of  the 
session  ;  and  the  consequence  was,  that  all  who  had 
in  the  mean  time  been  doing  what  at  the  time  was 
perfectly  legal  were  liable  to  suffer  the  punishment 
created  by  statute.^ 


"  A  BILL  of  exception,"  says  Clayton,  "  is  to  pre- 
-^^^J-  vent  the  precipitancy  of  the  judge,  and  ought 
to  be  allo\ved  in  all  courts  and  in  all  parts  of  the 
pleading,  and  may  be  put  in  any  time  before  the  jury 
have  given  their  verdict.  Quod  nota."^  The  further 
proceeding  provided  by  statute  in  IMassachusetts  "  to 
prevent  the  precipitancy  of  the  judge  "  b}'  settling  the 
truth  of  exceptions  when  he  disallows  or  alters  the 
same,  was  probably  unknown  in  Clayton's  time. 


CLAYTON  reports  that  a  challenge  to  a  jury 
was  directed  by  the  court  to  commence  in  this 
form  :  "  ^Nlay  it  please  you,  jNIr.  Justice  Larkley  "  etc. 
And  he  calls  attention  to  "  the  modesty  of  tlie  judge 
at  this  time,  not  to  direct  to  say,  'May  it  i)lease  your 
Lordship.' " 

1  Latless  v.  Holmes,  4  T.  R.  660.  2  Clayton,  158. 


THE  LA  W  REPORTERS.  125 

"  TN  an  action  of  assumpsit  for  money  due,  the 
-I-  plaintiff  laid  it  in  his  declaration  to  be  payable 
upon  request :  and  by  his  witness  it  did  appear  that 
a  fortnight's  time  was  given  for  the  payment  of  it,  and 
though  this  fortnight's  time  was  given  for  the  pay- 
ment of  it,  and  though  this  fortnight's  time  was  past 
long  before  this  action  was  brought,  yet  now  it  was 
held  a  failure  in  the  proof  of  the  plaintiff'  of  his  case 
as  he  had  laid  it."  ^  The  case  of  Stanwood  v.  Scovel, 
4  Pick.  422,  is  similar  both  in  facts  and  decision. 


THE  best  definition  of  an  indictment  which  the 
author  has  ever  seen  is  that  contained  in  the 
joint  opinion  of  Lord  Denman,  at  tlie  time  Attorney- 
General,  and  Sir  William  Home,  Solicitor-General : 
"  The  first  principles  of  law  require  that  the  charge 
should  be  so  preferred  as  to  enable  the  court  to  see 
that  the  facts  amount  to  a  violation  of  the  law,  and 
the  prisoner  to  understand  what  facts  he  is  to  answer 
or  disprove."  ^ 

THE  advice  given  by  T/)rd  Coke  in  his  com- 
mentary upon  Twyne's  case  in  regard  to  "  any 
gift  of  goods  and  cliatteis  made  in  satisfaction  of  a 
debt "  remains  as  good  as  ever,  namely,  "  immediately 
after  the  gift  take  possession  of  them."  . 

1  Clayton,  115. 

*  Forbytli  Constitutional  Law,  p.  458. 


12G  CURIOSITIES   OF 

THE  style  of  some  of  the  old  reporters  is  ad- 
mirable. Clayton  reports  this  case  :  "  Trespass. 
Plaintiff  declares  that  the  defendant  did  break  his 
close  and  eat  his  grass  etc.  cimi  averiis  suis,  to  wit, 
oxen,  sheep,  hogs,  avibus,  anglice  turkies.  And  the 
judge  did  hold  that  turkies  are  not  coni])rised  witliin 
the  general  word  '  averia,'  which  is  an  old  law  word, 
and  these  fowls  came  but  lately  into  England:^  and 
upon  this  it  was  directed  to  sever  the  damages,  for 
otherwise  if.  the  damages  shall  be  joyntly  given,  and 
it  be  ill  for  this  of  the  turkies,  for  the  reason  above- 
said,  it  will  overthrow  all  the  verdict."  ^ 


IN  a  recent  case  in  Pennsylvania,^  INIr.  Justice 
Lewis  thus  discourses  of  a  condition  in  a  will  in 
restraint  of  marriage  :  "  The  principle  of  reproduction 
stands  next  in  importance  to  its  elder-born  correlative 
self-preservation,  and  is  equally  a  fundamental  law 
of  existence.  It  is  the  blessing  which  tempered  with 
mercy  the  justice  of  expulsion  from  Paradise.  It 
was  impressed  upon  the  human  creation  by  a  benefi- 
cent Providence,  to  multiply  tlie  images  of  himself, 
and  thus  to  promote  his  own  glory  and  the  happiness 
of  his  creatures.  Not  man  alone,  Ijut  the  whole 
animal  and  vegetable  kingdom  are  under  an  imperious 

1  Clayton's  ncports  were  published  in  1651. 

2  Usley's  Case,  p.  50. 

«  Commonwealth  v.  Staaffer,  10  Penn.  State  Rep.  355. 


THE  LAW  REPORTERS.  127 

necessity  to  obey  its  mandates.  From  the  lord  of 
the  forest  to  the  monster  of  the  deep,  from  the 
subtlety  of  the  serpent  to  the  innocence  of  the  dove, 
from  the  celastic  embrace  of  the  mountain  ktihnia  to 
the  descending  fructification  of  the  lily  of  the  plain, 
all  Xature  bows  submissively  to  this  primeval  law. 
Even  the  flowers  which  perfume  the  air  with  their 
fragrance,  and  decorate  the  forests  and  fields  with 
their  hues,  are  but  'curtains  to  the  nuptial  bed.'  The 
principles  of  morality,  the  policy  of  the  nation, 
the  doctrines  of  the  common  law,  the  law  of  nature 
and  the  law  of  God,  unite  in  condemning  as  void 
the  condition  attempted  to  be  imposed  upon  his 
widow." 


MR.  RICHAED  WEST,  afterwards  Lord  Chan- 
cellor of  Ireland,  gave  a  pithy  opinion  "  Ou 
the  Common  and  Statute  Law  applicable  to  the 
Colonies,"  concluding,  "  Let  an  Englishman  go  where 
he  will,  he  carries  as  much  of  law  and  liberty  with 
him  as  the  nature  of  thin'rs  will  bear."  ^ 


IN  some  copies  of  the  Second  Part  of  Brownlow's 
Reports  there  is  a  peculiar  Preface,  in  otliers  it 
is  omitted  ;  tlie  reader  may  perhaps  think  it  might  as 
well  have  been  omitted  in  all. 

1  Forsyth  Constitutional  Law,  p.  1. 


128  CURIOSITIES  OF 

THE  common  law  contains  a  general  definition 
of  forgery  ;  but  the  statute  law  lias  specified  so 
many  varieties  of  forgery  that  the  offence  at  common 
law  has  been  nearly  suj)erseded.  Indeed,  it  would 
require  great  ingenuity  to  commit  it  without  com- 
mitting, at  the  same  time,  a  statutory  offence.  The 
problem  was  perhaps  solved  by  a  man  who  painted 
the  name  of  an  eminent  artist  in  the  corner  of  a 
picture,  in  imitation  of  the  original,  in  order  to  pass 
it  olf  as  an  original  pictvire  by  that  artist.  A  case 
was  reserved  to  determine  whether  the  solution  was 
sound.  It  Mas  decided  that  he  was  not  guilty  of 
forgery.^ 

The  drawer  of  a  check  on  a  bank  which  was  duly 
honored  and  returned  to  him  by  the  bank,  afterwards 
altered  his  signature  in  order  to  give  it  the  appearance 
of  forgerv,  and  to  defraud  the  bank  and  cause  the 
payee  of  the  check  to  be  charged  with  forgery.  The 
Court  of  Queen's  Bench  were  of  opinion  that  inas- 
much as  the  alteration  did  not  alter  the  legal  effect 
of  the  document  it  did  not  amount  to  a  forgery .^ 


PPlOFESSIONAL  law-books  are  not  generally 
esteemed  as  light  reading.  Menage  wrote  a 
book  on  the  amenities  of  the  Civil  Law,  which  does 
anything  but  fulfil  its  promise.^ 

1  Regina  r.  Closs,  Dearslj-  &  Bell  C.  C.  460. 

2  Britian  t.  Bank  of  Loiulon,  11  W.  R.  569. 

8  Mi'iiage  (Gilles)  .Juris  Civilis  Amoenitatcs.     Sccuuda  editio.  8vo. 
Paris.  1677. 


THE   LAW  REPORTERS.  129 

IN"  theory,  the  law  looks  upon  the  services  of 
counsel  as  rendered  gratuitously.^  In  practice, 
the  client  often  takes  the  same  view.  Combine  the 
two,  and  the  profits  arising  from  tlie  practice  of  the 
law  are  easily  computed.     Compare  Juvenal :  — 

Die  igitur,  quid  causidicis  civilia  prsestent 
Officia  et  luagno  comites  in  fasce  libelli  ? 

Veram  deprendere  messem 

Si  libet  :  hinc  centum  patrimonia  causidicorum, 
Parte  alia  solum  nissati  pone  Lacerna;. 

Sat.  VII..  106-114. 

Well,  tell  me  then,  what  do  the  services  rendered  their 
fellow-citizens,  and  their  briefs  they  carry  about  with 
tliem  in  a  big  bundle,  bring  in  to  the  lawyers  ?  .  .  .  . 
But  if  you  like  to  calculate  the  actual  harvest  they 
reap,  set  in  one  scale  the  estate  of  a  hundred  lawyers, 
and  you  may  balance  it  on  the  other  side  with  the 
single  fortune  of  Lacerna,  the  charioteer  of  the  lied. 


A  MAX  grants  all  trees  in  such  a  close,  excepting 
one  plump  of  oaks  being  eight  in  number,  and 
there  were  nine  of  them,  and  the  grantee  did  cut 
them  all  down,  and  that  plumj)  among  the  rest,  and 
huMi-n  the  exception  abovesaid  not  good  for  the 
variance,  l)ut  all  did  ])ass.  ^ 

1  Keimcfly  ».  liroun,  10  C.  B.  X.  S.  C77.  Lord  Nottiiigliiim  held  it  to  bo 
maintcfiiince  in  a  l>:irrister  to  contract  to  be  paid  in  the  event  of  success. 
I't-nrife  v.  I'nrkcr,  Cases  Temp.  Kincii,  75. 

2  Clayton,  H9. 

6*  I 


130  CURIOSITIES   OF 

IN  actions  for  slander  it  has  been  at  all  times  the 
custom  to  preface  the  legal  enunciation  of  the 
plaintiff's  case  with  a  j^reliminary  panegyric  upon  his 
character  ;  this  is  supcriiuuus,  since  it  does  not  affect 
the  gist  of  the  action.  In  one  instance,  indeed,  it 
appears  that  in  an  action  for  calling  the  plaintiff  a 
common  whore,  the  announcing  herself  to  he  of  good 
fame  and  honest  reputation  tempted  the  defendant 
to  plead  that  at  the  time  of  publishing  the  words  she 
was  not  of  an  honest  reputation ;  but  the  plea  was 
held  to  be  bad,  since  it  answered  matter  of  induce- 
ment which  did  not  require  any  answer.^  In  a 
modern  case,  the  plaintiff  in  an  action  for  a  libel 
imputing  to  him  seditious  principles  prefaced  his 
declaration  with  a  boast  of  the  uniform  loyalty  of  his 
conduct ;  it  appeared  he  had  been  some  time  in  con- 
finement under  the  sentence  of  the  court,  for  publish- 
ing a-  seditious  libel;  Lord  Ellenborough  animad- 
verted on  the  impropriety  and  absurdity  of  such  a 
preamble.^ 

MX 

IT  was  held  to  be  slanderous  to  say  of  a  barrister 
that  he  could  not  make  a  lease  ;  whereas  it  was 
not  slanderous  to  say  of  an  attorney  that  he  made 
false  writings,  because  it  was  not  his  business  to  make 
Writim;s.^ 

1  Stracliv's  Case,  Style,  118. 

2  1  Starkie  on  Slander,  357,  2cl  ed. 

8  1  Rolle  Ab.  54.     Bac.  Ab.  Slander,  B.  3. 


THE  LAW  REPORTERS.  131 

CLAYTOX,  p.  34,  reports  tliis  case :  "  The  judge 
would  not  suffer  a  grand-juryman  to  be  pro- 
duced as  a  witness  to  swear  what  was  given  in 
evidence  to  them,  because  he  is  sworn  not  to  reveal 
the  secrets  of  his  companions.  See,  if  a  witness  is 
questioned  for  a  false  oath  to  the  grand  jury,  how  it 
shall  be  proved  if  some  of  the  jury  be  not  sworn  in 
such  case;^  and  in  a  case  between  Hitch  and  Mallet 
such  a  case  was  about  an  oath  made  before  a  grand 
jury,  cpuere  What  became  of  it  ?  " 


FOR  saying  to  the  plaintiff's  wife  these  words, 
"  You  had  a  bastard  in  London,  and  go  thither 
and  have  another,"  and  the  judge  held  tlie  action 
would  not  lie :  but  see  because  of  the  Aariance  wliich 
may  lie  in  sucli  case  between  the  husband  and  his 
wife,  which  is  damage  etc.^ 


AN  attorney  cannot  act  on  both  sides,  even  with 
the  consent  of  the  parties."^  The  court  com- 
mitted an  attorney  to  the  Fleet,  and  struck  him  off 
the  roll,  for  accepting  a  retainer  on  both  sides.* 

1  "Some  of  tlie  jury"  shall  be  "  sworn  in  such  case."     Commou- 
wcaltli  V.  M(';i(l,  12  Gray,  167. 

2  Clayton,  73. 

8  Anon.  7  .Mod.  47. 

*  Simon  llasou's  Case,  Freeman,  74. 


132  CURIOSITIES   OF 

IN'  Hilton  V.  Eckersley,^  the  sole  point  was  one 
purely  of  political  economy,  arising  out  of  the 
Combination  Laws.  Some  Lancashire  mill-owners 
entered  into  a  counter-combination  against  their  men 
(who  had  combined  to  force  their  masters  to  yield  to 
certain  terms)  not  to  open  their  mills  for  twelve 
months  except  on  terms  agreed  to  by  the  majority 
of  such  mill-owners.  Whether  this  agreement  of  the 
masters  was  valid,  was  the  suliject  of  elaborate  dis- 
cussions in  the  Court  of  Queen's  Bench,  and  the 
Court  of  Error.  "  I  enter  on  such  considerations," 
said  Lord  Campbell  in  delivering  his  judgment,  "with 
much  reluctance  and  apprehension,  when  I  think  how 
different  generations  of  judges,  and  different  judges 
of  the  same  generation,  have  differed  in  opinion  on 
questions  of  political  economy,  and  other  topics  con- 
nected with  the  adjudication  of  such  cases."  The 
court  held  the  agreement  void,  as  contrary  to  public 
policy,  in  restraint  of  trade,  and  the  free  action  of 
individuals ;  and  the  judgment  was  confirmed  unani- 
mously by  a  Court  of  Error.  Compare  this  decision, 
says  a  very  recent  writer,  and  the  enlightened  princi- 
ples on  Avhich  the  discussion  was  conducted,  with  the 
state  of  things  existing  formerly  in  the  Legislature 
and  on  the  Bench,  as  evidenced  by  the  following 
passage  in  Lord  Coke's  Third  Institute.  Speaking  of 
such  "  new  manufacture  as  deserves  a  privilege,"  he 
proceeds :  "  There  was  a  new  invention  found  out  here- 

1  6  i:i.  &  Bl.  47.   24  L.  J.  N.  S.  Q.  B.  352.   25  L.  J.  N.  S.  Q.  B.  199. 


THE  LAW  REPORTERS.  I33 

tofore,  that  bonnets  and  caps  might  be  thickened  in  a 
fulling-mill,  by  which  means  more  might  be  thickened 
and  fulled  in  one  day  than  by  the  labors  of  fourscore 
men,  who  got  their  livings  by  it :  It  was  ordained, 
that  bonnets  and  caps  should  he  thickened  and  fulled 
hy  the  strength  of  men,  and  not  in  a  fidling-mill :  for 
it  was  holden  inconvenient  to  turn  so  many  laboring 
men  to  idleness." 


LAW  CASES.  Special  and  Selected  Law  Cases, 
concerning  the  Persons  and  Estates  of  all  Men 
whatsoever ;  collected  out  of  the  Reports  and  Year- 
Books  of  the  Common  Law  of  England.  4to.  London : 
1641."  "The  title  of  this  book,"  writes  Mr.  Wallace, 
"  certainly  operates  by  way  of  enlargements 


THERE  is  no  court  equal  to  the  trial  of  the  superior 
judges  of  the  realm  for  facts  done  in  judicature.^ 
If  judges  in  any  court,  said  Lord  Eobertson,^  were 
liable  to  be  called  to  an  account  for  words  spoken  in 
their  judicial  capacity,  it  may  be  said,  in  tlie  words 
of  Lord  Stair,  "  No  man  but  a  Ijeggar  or  a  fool  would 
be  a  judge." 

1  Argument  for  tlic  defenflant  in  error  in  .Tolnistono  v.  Sutton,  1  T.  R. 
p  535.     See  H:in<i;ill  v.  Iirif,'l)!itn,  7  VV'alliice,  p.  535. 

2  Millero.  Hope,  '2  Shaw  Appeal  Cases,  p.  134. 


134  CURIOSITIES   OF 

~VTT"IIEN  a  verdict  of  guilty  had  been  given  against 
V  V  Lord  Stafford,  Lord  Chanceller  Nottiiigliam, 
Lord  High  Steward,  proceeded  to  pass  scutcnce 
(according  to  the  expression  of  Evelyn,  \y\\o  was 
present)  "  with  greate  solemnity  and  dreadful  gravity." 
Lord  Stafford  then  Legged  that  he  might  no  longer  be 
kept  a  close  prisoner  as  he  had  long  been,  aud  that 
his  wife  and  children  might  be  admitted  to  see  him 
until  his  death. 

Lord  High  Steward.  —  "]\Iy  Lord  Stafford,  I  be- 
lieve I  may  witli  my  Lords'  leave  tell  you  one  thing  far- 
ther, that  my  Lords,  as  they  proceed  with  rigour  of  jus- 
tice, so  they  proceed  with  all  the  mercy  and  compassion 
that  may  be  ;  and  therefore  my  Lords  will  be  liumble 
suitors  to  the  King,  that  he  will  remit  all  punishment 
hut  the  talcing  off  your  head."  ^ 


MR.  WALLACE  adverts  to  a  ludicrous  blunder 
of  ]\Ir.  Justice  the  Honorable  St.  George 
Tucker,  of  the  Supreme  Court  of  Appeals  of  Vir- 
ginia, who  sets  aside  Lord  Hardwicke's  censure  of 
"  Eeports  Tempore  Finch,"  and  supposes  that  Lord 
Nottingham  was  actually  the  author.^  "  This  book  has 
indeed,"  he  says,  "  been  dishonored  as  one  of  no 
authority.  Whether  for  want  of  the  imprimatur  of 
the  Lord  Chancellor  and  Judges,  formerly  prefixed  to 

1  7  Howell  state  Trials,  1217-1558. 

2  The  Reporters  20,  3d  ed. 


THE  LAW  REPORTERS.  135 

books  of  Eeports,  I  cannot  tell.  But  the  name  of 
Sir  Hcneage  Finch,  the  author,  who  is  mentioned  by 
Judge  Blackstone  as  a  person  of  the  greatest  abilities 
and  most  uncorrupted  integrity,  endued  with  a  per- 
vading genius,  which  enabled  him  to  discover  and 
pursue  the  true  spirit  of  justice,  may  weigh  against 
the  opinion  even  of  Lord  Hardwicke,  especially  vdiere 
this  book  is  cited  and  relied  on  bv  other  Judges."  ^ 


THE  "  Eeports  Temp.  Finch  "  has  been  noted  for  a 
peculiarity,  namely,  that  in  all  cases  where  the 
rule  laid  down  or  rehed  on  by  the  judge  differs  from 
the  corresponding  rule  of  the  Civil  Law,  the  differ- 
ence is  noted  in  the  margin. 


SIR  EOBEET  FILMEE  published  an  advertise- 
ment to  the  jurymen  of  England  touching 
witches.  In  this  he  shows  the  difference  between  a 
Holjrew  and  an  English  witch,  and  proves  that  the 
Devil  is  tlie  principal,  and  the  witcli  only  an  accessory 
before  the  fact.  Now  an  accessory  cannot  be  con- 
victed before  the  principal  is  tried  or  outlawed  upon 
sunnnons  for  nonajjpearance ;  lie  could  not  be  tried 
l)y  Ids  peers,  wlio,  if  they  could,  would  never  convict 
liim;  and  by  tlie  rules  of  the  connnon  law  th©  Devil 
could  never  l)e  summoned  nor  outlawed,  and  therefore 
a  witch  could  not  l)e  tried. 

1  Smith  V.  Chapman,  1  Heiiing  &  Muiifonl,  293. 


136  CURIOSITIES    OF 

ON  tlie  trial  of  Home  Tooke,  having  objected  to  a 
particular  piece  of  evidence,  he  "vvas  reminded 
by  Chief  Justice  Eyre,  that,  if  there  were  two  or  three 
links  in  the  chain,  they  must  go  to  one  first,  and  tlien 
to  another,  and  see  whether  they  amounted  to  evi- 
dence.    The  defendant  demurred  to  this. 

HoKNE  Tooke.  —  I  beg  your  pardon,  my  Lord,  but 
is  not  a  chain  composed  of  links,  and  may  I  not  disjoin 
each  link,  and  do  not  I  thereby  destroy  the  chain  ? 

Eyre  C.  J.  —  I  rather  think  not,  till  the  links  are 
put  together,  and  form  tlie  chain. 

HoRXE  Tooke.  —  I  rather  think  I  may,  because 
it  is  my  business  to  prevent  the  forming  of  that 
chain  ! 

IT  was  not  until  1695  that  a  statute  was  passed  in 
England,  which  provided,  among  otlier  things, 
that  any  person  on  trial  for  liigh  treason  "  shall  be 
received  and  admitted  to  make  his  full  defence  by 
counsel  learned  in  the  law."  The  first  instance  on 
record  in  wliich  we  find  counsel  assigned  under  this 
statute  is  on  the  trial  of  Rookwood  and  others,  on 
whicli  occasion  Sir  Bartholomew  Shower  and  Mr. 
Phipps  defended  the  prisoners ;  and  it  is  curious  to 
observe  in  what  deprecatory  terms  they  separated 
themsglves  from  their  clients.  "  ]\Iy  Lord,"  said  Sir 
Bartliolomew,  addressing  Chief  Justice  Holt,  "  we  are 
assigned  of  counsel  in  pursuance  of  an  Act  of  Parlia- 
ment, and  we  hojDe  that  nothing  wliich  we  sliall  say 


THE   LAW  REPORTERS.  13 7 

in  defence  of  our  clients  shall  be  imputed  to  ourselves, 
I  thought  it  would  have  been  a  reflection  upon  the 
government  and  your  lordship's  justice,  if,  being 
assigned,  we  should  have  refused  to  appear :  it  would 
have  been  a  publication  to  the  world  that  we  dis- 
trusted your  candor  towards  us  in  our  future  prac- 
tice upon  other  occasions We  come  not  here 

to  countenance  the  practices  for  which  the  prisoners 
stand  accused,  nor  the  principles  upon  which  such 
practices  may  be  presumed  to  be  founded ;  for  we 
know  of  none,  either  religious  or  civil,  that  can  war- 
rant or  excuse  them."  ^  A  cold  exordium  for  the 
speech  of  an  advocate  ! 


AN  imperative  rule  of  pleading  is  thus  tersely 
expressed  :  "  An  indictment  ought  to  be  certain 
to  every  intent,  and  without  any  intendment  to  tlie 
contrary."  ^  The  charge  must  be  sufficiently  explicit 
to  support  itself;  there  is  no  latitude  of  intention  to 
include  anything  more  than  is  charged.^ 


MR.  JUSTICE    MAULE  observed  that  a  man 
might  by  apt  words  bind  himself  that  it  shall 
rain  to-morrow  or  that  he  will  pay  damages.* 

1  13  Howell  St:ite  Trials,  145.  2  Cro.  Eliz.  4!)0. 

8  2  Burr.  1127. 

*  Canham  v.   Harry,  15  C.  B.  p.  G19.     Quoted  in  the  jiulKiiicnt   in 
Bally  p.  Crespigriy,  Law  Rep.  4  Q.  B.  p.  185,  and  10  Best&  Smith,  p.  11. 


138  CURIOSITIES   OF 

WE  give  a  few  cases  decided  in  the  Star-Cham- 
ber. They  are  probably  quite  as  valuable 
as  a  A'ast  number  of  the  modern  decisions,  and  are 
certainly  shorter  and  more  entertaining.  This  court 
has  everywhere  of  late  times,  and  nowhere  more 
than  in  our  oxiti  Republican  country,  been  the  subject 
of  unbounded  abuse.  Certainly  it  would  be  a  curious 
thing  to  inquire  liow  a  triliunal  composed  of  such 
men  as  it  was  —  that  is  to  say,  of  men  like  Coke,  and 
Bacon,  and  Hobart,  and  Crewe,  and  Laud,  and  A'elver- 
ton  —  should  have  so  latterly  failed  to  commend  their 
administration  of  justice  to  either  their  own  or  to 
any  other  day  or  land.  Indeed,  when  we  see  what 
men  filled  the  offices  which  are  named  in  the  statute 
constituting  this  court,  it  is  impossible  to  conceive  of 
a  tribunal  better  able  to  discharge,  or  more  certain  to 
discharge  with  integrity,  with  justice,  with  decorum, 
with  every  sentiment  of  respect  for  the  li\'ing  and 
the  dead,  with  all  the  regards  that  were  due  to  the 
accused  and  the  accuser,  and  with  the  many  exquisite 
social  considerations  wldch  the  honor,  the  offices,  and 
dignity  of.  the  persons  frequently  before  it  re(|uired 
at  their  hand,  than  a  tribunal  thus  ordained  ;  and  that 
its  deliberations  were  not  with  open  doors,  and  that 
its  powers  were  almost,  in  fact,  unlimited,  were  rea- 
sons, one  might  say,  a  priori,  why  its  judgments 
should  give  the  nation  satisfaction. 

This  particular   topic  —  the   degeneration    of   the 
Star-Chamber  —  itself  makes  a  curiosity  of  the  law ; 


THE  LAW  REPORTERS.  139 

and  as  much,  perhaps,  of  the  Bigarrures  de  I'Esprit 
Humain.  It  is  one  on  which  either  Buckle  or  Scarron 
could  exhaust  their  powers.  AVe  give  a  few  cases, 
all  of  them  from  Hobart's  Eeports.  As  we  read 
them,  one  cannot  help  thinking  that  Lords  Bacon  and 
Yelverton  (whom  Bacon  styled  a  man  of  "  very  good 
parts,"  which  made  acquaintance  between  them  on 
"  first  sight " ),  and  other  of  the  bright  geniuses  who 
adorned  that  age  and  court,  must  have  been  extremely 
amused  at  the  questions  which  came  occasionally 
before  their  consideration. 

"  The  Lady  Arabella,"  mentioned  in  the  Countess 
of  Shrewsbury's  Case,  which  is  one  of  those  we  give, 
was  of  course  the  Lady  Arabella  Stuart,  and  the 
"  supposed  child  "  w^as  necessarily  a  matter  of  vast 
curiosity  to  the  w^oinen,  as  well  as  of  the  most  well- 
founded  anxiety  to  the  graver  part  of  the  nation,  as 
involving  directly  the  heirship  of  the  Stuarts  to  the 
throne.  Our  ideas  of  the  chivalrous  notions  of  the 
Star-Chaml)er  receive  a  sad  abatement  from  one  of 
the  cases  we  present  (Tufton  v.  Nevill),  in  which  the 
court,  Avliilc  deciding  that  so  delicate  a  matter  as 
solicitation  of  chastity  is  not  examinable  even  by  it, 
yet  intimates,  most  ungallantly,  that  a  man,  if  com- 
pelled to  answer  on  oath,  might  criminate  a  lady's 
virtue  where  he  himself  had  been  gratified  by  her 
regards.  Very  different  was  Sir  Thomas  Erskine's 
o\)\n\(m,  as  will  ]je  recalled  by  every  one  familiar 
with  his  brilliant  and  beautiful  .speeches. 


140  CURIOSITIES  OF 

Lord  Darcy  v.  Markiiam.^ 

The  Lord  Darcy  of  the  north  sued  Gervase  Mark- 
ham,  esquire,  iu  the  Star-Chamber,  and  the  case  fell 
out  to  be  thus :  that  they  had  hunted  together,  and 
the  defendant  and  a  servant  of  the  plaintiff,  one 
Beckwith,  fell  together  by  the  ears  in  the  field,  and 
Beckwith  threw  him  down  and  was  upon  him  cuffing 
of  him,  and  the  Lord  Darcy  took  him  off  and  re- 
proved his  ser^'ant,  and  yet  jNIarkliain  cliid  him, 
charging  him  with  maintaining  liis  man.  And  the 
Lord  Darcy  replied,  that  he  had  used  him  kindly,  for 
if  he  liad  not  rescued  him  from  his  man,  he  ]iad 
beaten  him  to  rags.  Whereupon  Markhain  wrote 
five  or  six  letters  to  the  Lord  Darcy,  and  subscribed 
them  with  his  name,  but  sent  them  not,  but  dispersed 
them  unsealed  in  the  fields,  whereof  the  effect  was, 
that  whereas  the  Lord  Darcy  liad  said,  that  but  for 
him  his  man  Beckwith  had  beat  him  to  rags,  he  lied, 
and  that  he  would  maintain  witli  his  life ;  and  then 
said,  that  he  had  dispersed  those  letters  that  he  might 
find  them,  or  somebody  else  might  bring  them  to 
him  ;  and  concluded  that  if  he  were  desirous  to  speak 
with  liim,  that  he  should  send  his  boy,  and  he  should 
be  well  used.  Tliis  cause  was  effectually  handled  at 
the  common  law,  not  enforced  by  the  King's  procla- 
mation, because  the  defendant  had  no  knowledge  of 
the  proclamation,  nor  by  likeliliood  could  liave,  it  was 
so  soon  after  the  proclamation.     But  the  plaintiff's 

1  Hobart,  120. 


THE  LAW  REPORTERS.  141 

counsel,  by  direction  of  the  court,  left  the  proclama- 
tion, and  yet  Markham  was  censured  and  fined  £  500. 
Tlie  reason  of  the  sentence  was,  that  this  was  a  com- 
pounded misdemeanor,  for  the  letter  thus  dispersed 
was  in  the  nature  of  a  libel,  slanderous  and  defama- 
tory to  my  Lord  Darcy ;  and  the  other  point  was, 
tliat  though  there  were  no  direct  challenge  to  my 
Lord  Darcy  to  fight,  yet  there  were  plain  provocations 
to  it,  and,  as  it  Avere,  to  call  and  challenge  my  Lord 
Darcy  to  fight  him.  And  though  the  case  was  some- 
thing aggraA'ated,  that  it  was  to  a  peer  of  the  realm, 
yet  the  censuring  of  the  fact  rose  out  of  the  nature 
of  it,  and  not  out  of  the  circumstances  of  the  person. 


Mai;shall  v.  Steward. ^ 
IMarshall  brought  an  action  of  the  case  against 
Steward,  reciting  the  statute  of  1  Jac.  of  invocation  of 
foul  spirits,  (which  was  needless,)  for  spealdng  these 
words  unto  him  :  "  The  devil  appears  unto  thee  every 
night  in  the  likeness  of  a  black  man,  riding  upon  a 
black  horse,  and  tliou  conferrest  with  liim,  and  wliat- 
soever  thou  dost  ask  liim  he  doth  give  it  thee,  and 
that  is  the  reason  thou  hast  so  much  money."  And 
alter  a  verdict  finding  the  words,  the  court  gave  judg- 
ment for  the  plaintiff 


Whknua.m's  Case.''* 
Yelvertox,  attorney-general,  informed  in  the  Star- 
Chamber,  ore  tenus,  against  John  Wrenham,  for  a 

1  Hobart,  129,  2  Hobart,  220. 


142  CURIOSITIES  OF 

* 

complaint  by  liim  exhibited  against  Sir  Francis  Bacon, 
Lord  Chancellor,  to  the  King,  in  a  book  containing  a 
scandalous  censure  of  a  decree  made  by  the  said 
Lord  Chancellor  against  him,  for  one  Sir  Edward 
Fisher.  In  the  sentencing  of  -which  case  it  was 
resolved  by  the  whole  court  that  it  was  lawful  for 
any  subject  to  petition  the  King  for  redress,  in  an 
humble  and  modest  manner,  where  he  finds  himself 
grieved  by  a  sentence  or  judgment,  —  for  access  to  the 
sovereign  must  not  be  shut  up  in  case  of  the  subject's 
distresses ;  but  on  the  other  side,  it  is  not  permitted, 
under  color  of  a  petition  and  refuge  to  the  King,  to 
rail  upon  the  judge  or  his  sentence,  and  to  make  him- 
self judge  in  his  own  cause,  by  prejudging  it  before 
the  rehearing  (for  which  his  suit  to  the  King  should 
be),  which  Wrenham  in  this  case  did,  through  his 
whole  book,  with  the  most  desj^erate  boldness  and 
desj)iteful  and  virulent  words  that  was  possible.  It 
was  also  resolved,  that  the  injustice  of  the  decree  was 
not  to  be  quest ioned  in  this  case;  for  that  was  not 
the  pomt  now  examinable ;  though  in  that  it  did 
appear  that  he  had  done  my  Lord  Chancellor  much 
and  great  wrong.  So  he  was  censured  a  thousand 
pounds  fine. 


TuFTOX  V.  Nevill.1 

Sir  Humphrey  Tuftox  exhibited  a  biU  etc.  against 
Master  Chi'istopher  i^evill,  son  to  the  Lord  Aburga- 

1  Hobart,  195. 


THE  LAW  REPORTERS.  143 

venny,  for  a  riot,  and  laid  hy  way  of  inducement, 
tliat  Xevill  had  solicited  liis  wife  to  incliastity  both 
before  and  since  his  marriage  with  her;  and  that  this 
being'  made  known  unto  him  by  his  wife,  he  caused 
her  to  write  letters  to  the  defendant,  giving  him  hope 
of  her  inclination,  and  appointing  him  a  time  by 
night,  and  place ;  at  which  the  defendant  coming, 
(and  the  plaintiff,  with  a  man  disguised  like  a  woman 
being  there  expecting  as  much,)  the  defendant  and 
others  in  this  company  made  a  riot  u^Don  him  and  his 
company. 

To  this  the  defendant,  as  to  the  riot  answered ;  but 
as  to  the  solicitation  of  the  lady's  chastity  demurred. 

Whereupon,  motion  being  made  in  court,  though 
there  were  some  of  another  mind,  yet  it  Avas  Ke- 
SOLYED  and  EuLED  that  the  defendant's  demurrer  was 
good  ;  and  though  it  was  urged  that  this  inducement 
served  very  much  both  to  aggravate  the  defendant's 
riot  and  to  justify  the  plaintiff's  train,  yet  the  point 
of  itself  was  naturally  of  another  jurisdiction,  and 
for  the  spiritual,  whose  proceeding  in  this  case  was 
not  to  be  usurped  nor  prevented.  Besides,  the  fault 
of  solicitation  is  of  so  uncertain  acceptation,  as  is 
not  fit  to  he  here  examined.  And,  lastly,  to  examine 
such  a  fault  by  the  oath  of  tlie  delinquent  is  not 
allowable  by  us,  being  a  delict  that  we  cannot  censure. 
And  it  may  prove  scandalous  in  the  event  if  the  de- 
fendant should  upon  his  oath  (which  were  in  him 
excusable  if  the  court  should  constrain  liis  answei) 


144  CURIOSITIES   OF 

criminate  the  lady,  were  it  true  or  false  ;  for  that 
could  never  be  'satisfied,  being  a  point  so  secret  as 
solicitation  only. 


HicKs's  Case.i 
One  sent  a  letter  closed  and  sealed  up  to  Sir 
Baptist  Hicks,  which  was  so  delivered  to  his  hands, 
containing  many  despiteful  scandals  delivered  ironice, 
as  saying,  "  You  will  not  play  the  Jew  nor  the  hypo- 
crite," and  in  that  sort  taunting  him  for  an  almshouse, 
and  certain  good  works  that  he  had  done  ;  all  which 
he  charged  liim  to  do  for  vainglory.  Whereupon 
Sir  Baptist  Hicks  sued  him  in  the  Star-Chamber. 
And  now  upon  the  hearing  it  was  resolved,  that, 
though  it  were  not  proved  that  the  defendant  had  any 
way  published  it,  yet  the  court  would  hold  plea  of  it, 
and  so  did,  and  fined  the  defendant,  and  sentenced 
him  to  M'ear  papers,  and  to  make  his  submission  to 
Sir  Baptist  Hicks  in  Cheapside.  Yet  an  action  of 
the  case  will  not  lie  in  that  case,  for  want  of  publica- 
tion ;  but  the  Iving  and  Commonwealth  are  interested 
in  it,  because  it  is  a  provocation  to  a  challenge,  and 
breach  of  the  peace. 


Countess  of  Shrewsbury's  Case.^ 
The  Countess  of  Shrewsbury  was  fined  ten  thousand 
pounds  and  committed  to  the  Tower,  for  that,  being 
called  to  the  Council  Table  and  interrogated  what  she 

1  Hobart,  215.  2  Hobart,  235. 


THE  LAW  REPORTERS.  145 

knew,  or  had  h-card  or  thought,  of  a  supposed  child 
which  it  was  rumored  that  Lady  Arabella  should  have 
had,  she  refused,  obstinately,  to  make  any  answer,  for 
it  was  judged  that  this  was  a  question  of  State.  For 
there  is  not  one  thing  that  doth  more  concern  the 
I)eace  of  a  kingdom  than  the  certainty  of  the  royal 
line;  insomuch  as  suppositious  persons  have  raised 
as  'great  commotions  and  troubles  in  States  as  the 
discords  of  true  heirs  and  descendants,  —  as  in  the 
case  of  Perkin  Warbeck,  he  at  home ;  and  counter- 
feit Sebastian  of  Portugal,  and  many  others 

The  lady  was  the  more  pressed  to  answer  this  matter, 
because,  being  more  familiar  and  inward  with  the 
Lady  Arabella  than  any  other,  she  must  needs  have 
falsified  the  rumor ;  for  cdl  men  of  understanding  held 
it  to  he  untrue. 


Traske's  Oase.1 
One  John  Traske,  a  minister  tliat  held  opinion  that 
the  Jeiuish  Sabbath  ought  to  be  observed,  and  not  ours, 
and  that  we  ought  to  abstain  from  all  manner  of 
swine's  flesh ;  being  examined  upon  these  things,  he 
confessed  that  he  had  divulged  these  opinions  and 
had  labored  to  bring  as  many  to  his  opinion  as  he 
could ;  and  had  also  written  a  letter  to  the  King 
wherein  lie  did  seem  to  tax  his  Majesty  of  liypocrisy, 
and  did  exjn-essly  inveigh  against  the  Bishop's  High 
Commissioners  as  bloody  and  cruel  in  their  proceed- 

1  Hobart,  236. 
7  J 


146  CURIOSITIES   OF 

ings  against  liim  and  a  papal  clergy.  Now  he  being 
called  ore  tenus,  was  sentenced  to  fine  and  imprison- 
ment —  not  for  holding  these  opinions,  for  these  were 
examinable  in  the  Ecclesiastical  Courts,  and  not  here, 
but  —  for  making  of  conventicles  and  factions  by 
that  means,  wliich  may  tend  to  sedition  and  com- 
motion, and  for  scandalizing  the  King,  the  bishops, 
and  the  clergy. 


Countess  of  Exeter  v.  Lady  Ross.^ 

In  the  gi'eat  cause  between  the  Countess  of  Exeter, 
the  Lady  Itoss,  and  others,  because  the  Lady  Eoss  and 
one  Sarah  Swarton,  her  maid,  had  charged  the  Coun- 
tess of  Exeter,  that  she  had  delivered  unto  the  said 
Lady  Eoss  at  Wimbleton,  at  the  Earl's  house,  in  a 
certain  chamber  there,  a  paper  written  and  signed  by 
herself  (as  she  said),  containing  a  confession  of  certain 
foul  faults,  and  a  submission  thereupon,  M'hich  was 
showed  unto  the  King ;  his  ]Majesty  commanded 
Serjeant  Crew  and  the  Serjeant  J\Ioore,  of  counsel 
of  either  side,  to  go  to  "Wimbleton,  and  there,  in  the 
same  chamber,  to  examine  the  Lady  Eoss  and  Swarton, 
upon  all  such  tilings  as,  upon  their  view  of  the  i)lace, 
tliey  might  judge  likely  to  discover  the  truth  or  false- 
hood of  the  same  matter  ;  which  they  did  accordingly, 
without  oath.  Now  the  same  persons  being  after- 
wards examined  in  court  as  defendants,  upon  all 
things  that  the  plaintiffs   listed;   they   did   further 

1  Hobart,  236. 


THE.  LA  W  REPORTERS.  147 

examine  them  upon  interrogatories,  whether  that 
declaration  which  they  had  made  at  Wimhleton  be- 
fore the  two  Serjeants  were  true  or  not ;  but  they  did 
not  show  them  that  declaration  now ;  whereupon 
they  answered  that  they  were  true. 

Kow,  upon  motion  in  open  court,  it  was  resolved 
that  these  examinations  were  not  well  taken ;  lor  no 
man  is  bound  by  an  examination  in  court,  till  first  he 
have  advisedly  read,  perused,  and  corrected  it,  as  he 
sees  cause,  and  then  finally  concluded  it.  Therefore, 
this  being  first  taken  without  oath,  there  was  no  reason 
to  bind  them  to  it  by  a  new  oath  by  memory  without 
review,  and  therefore  by  order  it  was  suppressed. 
Kevertheless,  because  it  was  like  that  the  said  exami- 
nation might  serve  the  better  to  discover  truth,  it  was 
ordered  that  the  same  their  declarations  should  be 
showed  them,  and  they  re-examined  upon  them. 
And  so  they  were. 

STAR-CHAjMBER  cases.  We  print  a  few  cases 
from  this  scarce  volume.  Their  brevity  is  cer- 
tainly commendable. 

"  Note  that  one  G.  writes  his  letter  to  a  juror  to 
appear  bet\ve(;n  L.  and  C.  \).  and  to  do  his  conscience, 
and  ho  was  fined  at  twenty  pounds  here,  because  he 
liail  iiotliiiig  to  do  ill  the  matter,  circa  27  Eli/.  Here 
note  that  no  man  ouglit  to  meddle  in  any  matter  de- 
pending in  suit  where  he  hath  nothing  to  do." 

"One  L.  0.  of  Kent  was  punished  in  the  court  lor 


148  CURIOSITIES  OF 

falsely  going  about  to  prove  one  that  was  his  cousin 
or  brother  to  be  a  traitor,  and  for  this  he  was  adjudged 
to  ride  about  AVestmiuster  Hall  with  his  face  to  the 
horse-tail,  circa  27  Eliz.  as  I  heard." 

"  Note  that  one  S.  of  the  county  of  Lancaster  for 
falsely  procuring  one  to  be  indicted  for  the  death  of 
another,  was  fined  in  this  court  to  a  great  sum,  circa 
31  Eliz." 

"  A  Knight  of  the  county  of  Nortliumberland  was 
fined  in  a  great  sum  in  the  Star-Chamber,  because  he 
permitted  a  seditious  book  called  Martin  Marprelate 
to  be  printed  in  his  house,  32  Eliz." 

"  One  writes  to  a  justice  of  the  peace  to  send  him 
his  warrant  with  a  blank,  to  put  in  one  he  would 
attach  upon  a  suspicion  of  felony,  and  so  the  justice 
did,  and  because  he  sent  his  warrant  with  a  l)lank  to 
put  in  the  name  of  one  he  knew  not,  neither  the  mat- 
ter, before  the  making  of  his  warrant,  he  was  fined 
in  this  court,  circa  30  Eliz. ;  and  it  was  one  Sir  J.  R." 

"  A  woman  great  with  child,  which  was  suspected 
of  incontinency  without  cause,  was  commanded  to  be 
whipped  in  Bridewell,  London,  by  the  Masters  there  ; 
and  because  she  fell  to  travail  before  her  time  etc. 
they  were  for  this  fined  in  this  court  at  a  great  sum. 
And  by  order  of  the  court  it  was  awarded  that  they 
should  pay  a  certain  sum  to  the  said  woman,  about 
the  31  of  Eliz.  See  the  proceedings  tliere  concerning 
this  matter  the  year  aforesaid,  set  down  more  at  large." 

"A  justice  of  the  peace  was  put  out  of  commission 


THE  LAW  REPORTERS.  149 

by  order  of  this  court,  for  because  he  refused  to  take 
the  peace  of  one  who  came  to  him,  and  offered  him 
surety  for  the  peace,  because  the  justice  which  did 
award  the  warrant  was  not  his  friend,  for  which 
reason  he  refused  to  go  before  him  to  be  bound  to  the 
peace." 

IN  a  recent  case  in  the  Supreme  Court  of  the 
United  States,  the  whole  business  of  making  hats, 
from  the  disintegrating  of  the  fur  to  the  production 
of  a  hat-body,  was  actually  carried  on  and  exhibited 
in  the  court-room ;  and  the  printed  argument  of 
counsel  contained,  as  "  exhibits,"  the  skin  of  the 
beaver  as  it  comes  from  the  animal,  with  specimens 
of  fur  as  thus  exhibited,  and  also  as  exliibited  in 
various  conditions  and  processes,  down  to  the  very 
surface  of  the  "  brush  "  and  "  napped  "  hats.  "  No 
similar  argument,"  says  the  reporter,  "perhaps,  was 
ever  made  in  any  court  of  law ;  nor  could  a  case  be 
explained  in  a  manner  more  satisfactory."  ^ 

MR.  JUSTICE  PUTNAM  thus  spoke  of  the 
])0wer  of  compression  and  discrimination  of 
Chief  Justice  Parsons  :  "As  liglit  and  spongy  fabrics 
are  reduced  to  portal Je  size  by  hydraulic  pressure,  so 
the  verbose  readings  of  the  law  were,  by  the  force  of 
liis  great  mind,  reduced  to  clear,  practical  rules."  ^ 

1  Burrr.  Ditryoe,  1  Wallace,  r,31. 

2  Deblois  v.  Ocean  In.suraiice  Co.,  16  I'ick.  p.  310. 


150  CURIOSITIES   OF 

UPOX  the  hearing  of  a  petition  before  Vice- 
Chancellor  Kindersley,  the  death  of  Lord 
Byron,  the  poet,  was  a  material  fact  in  the  peti- 
tioner's title ;  but  it  being  assumed  that  the  court 
would  take  judicial  notice  of  a  fact  Avliich  was  well 
known  to  the  whole  world,  no  evidence  was  adduced 
upon  the  subject.^  Counsel  observed  that  his  lord- 
shi])  having  died  in  Greece,  there  would  probably  be 
some  difficulty  in  obtaining  the  kind  of  e\'idence 
which  the  court  ordinarily  required.  Tlie  A^ice-Chan- 
cellor,  however,  declined  to  make  the  order,  except 
upon  the  production  of  the  usual  evidence,  for  which 
purpose  the  petition  stood  over.  This  is  a  curious 
instance  of  adherence  to  a  strict  general  rule  of 
evidence,  and  the  more  so  as  the  close  connection 
between  the  families  of  the  Vice-Chancellor  and  the 
poet  might  be  supposed  to  give  the  court  additional 
reason  for  dispensing  with  evidence  of  a  fact  which 
is  a  part  of  the  history  of  the  world. 


ALUDICEOUS  attempt  was  made  in  a  recent 
case  ^  to  fabricate  a  consideration,  A  father  lield 
a  promissory  note  of  his  son,  who  had  teased  him  with 
complaints  of  not  having  received  so  much  money 
or  so  many  advantages  from  his  father  as  his  other 
children,  as,  it  was  alleged,  the  father  had  admitted ; 

1  The  hearing  was  in  1862.     Lord  Byron  died  in  1824. 

2  White  V.  Bluett,  23  L.  J.  N.  S.  Exch.  36. 


THE  LAW  REPORTERS.  151 

and  that  he  had  agreed,  that,  if  his  son  would  cease 
forever  to  make  such  complaints,  he  should  be  absolved 
from  payment  of  the  note.  The  father  died,  and  his 
executor,  finding  the  note  among  the  testator's  papers, 
sued  the  son  upon  it  at  law ;  and  he  pleaded  the  facts 
as  an  answer  to  the  action.  The  plea  was  demurred 
to  as  showing  no  consideration  ;  and  the  son's  counsel 
endeavored  to  support  his  case  by  alleging  that  he 
had  a  right  to  make  the  complaints  alleged,  and  had 
subjected  himself  to  a  detriment,  by  not  being  able  to 
continue  his  ill-founded  complaints  !  The  court  con- 
temptuously dismissed  the  plea.  Baron  Parke  sar- 
castically asked,  "  Is  an  agreement  by  a  father,  in 
consideration  that  his  son  will  not  tore  him,  a  bind- 
ing contract  ?  "  By  the  argument,"  said  the  Lord 
Chief  Baron,  "  a  principle  is  pressed  to  an  absurdity, 

as  a  bul)ljle  is  blown  until  it  bursts Looking 

at  the  words  merely,  there  is  some  foundation  for  the 
argument;  and  following  the  words  only,  the  con- 
clusion may  be  arrived  at.  In  reality,  there  was  no 
consideration  whatever.  The  son  had  no  right  to 
complain,  for  the  father  might  make  wliat  distribution 
of  his  property  he  liked ;  and  the  son's  abstaining 
from  doing  what  he  had  no  i-ight  to  do  can  be  no 
coiisideration." 

IX  "  Star-Chamber  Cases,"  perjury,  more  quaintly 
tlian  accurately,  is  thus  defined :  "  Perjury  is  a  lie 
confirmed  by  oath." 


152  CURIOSITIES   OF 

THE  following  are  specimens  of  the  legal  nomen- 
clature of  AVestminster  Hall. 

"  In  fermedon  the  tenant  having  demanded  a  view 
after  a  general  imparlance,  the  demandant  issued  a 
writ  of  petit  cape  —  held  irregular." 

Also  :  "  If,  after  nulla  bona  returned,  a  testatum  be 
entered  upon  the  roll,  quod  devastavit,  a  writ  of  in- 
quiry shall  be  directed  to  the  sheriff,  and  if  by  in- 
quisition the  devastavit  be  found  and  returned,  there 
shall  be  a  scire  facias  quare  executio  non  de  propriis 
bonis,  and  if  upon  that  the  sheriff  returns  scire  feci, 
the  executor  or  administrator  may  appear  and  traverse 
the  inquisition." 

Again :  "  If  the  record  of  Nisi  j)rius  be  a  die  Sancti 
Trinitatis  in  tres  Septimanas  nisi  a  27  June,  prius 
venerit,  which  is  the  day  after  the  day  in  Bank, 
which  was  mistaken  for  a  die  Sancti  Michaelis,  it 
shall  not  be  amended." 


IT  is  curious  to  observe  how  bitter  a  prejudice 
Themis  has  against  her  own  humbler  ministers. 
Most  of  the  bitterest  legal  jokes  are  at  tlie  expense 
of  the  class  who  have  to  carry  the  law  into  effect. 
Take,  for  instance,  the  case  of  the  bailiff  who  had 
been  compelled  to  swallow  a  ^\^.it,  and,  rushing  into 
Lord  Xorbury's  court  to  proclaim  the  indignity  done 
to  justice  in  his  person,  was  met  by  the  expression  of  a 
hope  that  the  writ  was  "  not  retiirnaUe  in  this  court." 


THE  LAW  REPORTERS.  153 

I  LEAVE  behind  me,"  wrote  Lord  Campbell,  "  thir- 
teen huge  volumes  (XV.  to  XVIII.  of  Adolphus 
and  Ellis,  and  I.  to  IX.  of  Ellis  and  Blackburn)  of 
Queen's  Bench  Pteports,  chiefly  filled  with  my  judg- 
ments while  I  presided  in  the  Queen's  Bench.  But 
from  the  portentous  multiplicity  of  law  Eeports  now 
published,  there  seems  almost  a  certainty  of  all  the 
judgments  of  every  judge,  however  eminent,  being 
speedily  smothered.  The  whole  world  is  now  insuf- 
ficient to  contain  all  the  law  Reports  which  are 
published.  I  remember  the  time  when  one  good-sized 
Ijookcase  would  hold  all  the  books  worth  consulting 
—  from  the  Year  Books  to  the  last  number  of  the 
Term  Pieports.  What  is  the  remedy  ?  Perhaps  a 
decennial  auto  da  fe." 


LUTWYCHE'S  EEPORTS  were  edited  in  1718  by 
W.  Xelson.  In  the  Preface  this  whimsical  an- 
notator,  speaking  of  the  subtlety  and  obscurity  with 
which  the  science  of  pleading  was  invested,  observes : 
"  Here  we  may  see  what  artificial  fencing  there  is  be- 
tween replications  and  rejoinders,  till  an  end  is  put 
to  the  strife  by  some  general  or  special  demurrer,  — 
and  abundance  more  of  such  cobweb  subtleties,  spun 
so  very  fine  by  the  spiders  of  the  law,  that  one  would 
think  it  done  on  purpose  to  let  justice  fall  through." 

1  Life  of  Lord  Campbell,  Vol.  IL  pp-  383,  384. 
7* 


154  CURIOSITIES   OF 

ON  the  supposition  that  tliere  are  few  readers  who, 
like  Lord  King,  can  boast  of  having  read  the 
Statutes  at  Large  through,  we  venture  to  give  a  title 
of  an  Act  —  a  title  only,  remember,  of  one  of  the 
bundle  of  acts  passed  in  one  session  —  as  an  instance 
of  the  comprehensiveness  of  English  statute  law, 
and  the  lively  way  in  which  it  skips  from  one  subject 
to  another.     It  is  entitled  — 

"An  Act  to  continue  several  laws  for  the  better 
regulating  of  pilots,  for  the  conducting  of  ships  and 
vessels  from  Dover,  Deal,  and  the  Isle  of  Thanet,  up 
the  liiver  Thames  and  Med  way ;  and  for  the  permit- 
ting rum  or  spirits,  of  the  British  sugar  plantations  to 
be  landed  before  tlie  duties  of  excise  are  paid  thereon ; 
and  to  continue  and  amend  an  Act  for  preventing 
fraud  in  the  admeasurement  of  coals  within  the  city 
and  liberties  of  Westminster,  and  several  parishes 
near  thereunto ;  and  to  continue  several  laws  for  pre- 
venting exactions  of  occupiers  of  locks  and  wears 
upon  the  Iiiver  Thames  westward ;  and  for  ascertain- 
ing tlie  rates  of  water-carriage  upon  the  said  river ; 
and  for  the  better  regulation  and  government  of  sea- 
men in  the  merchant  service ;  and  also  to  amend  so 
much  of  an  Act  made  during  the  reign  of  King 
George  I.  as  relates  to  the  better  preservation  of 
salmon  in  the  River  Eibble ;  and  to  regulate  fees  in 
trials  and  assizes  at  nisi  prius "  etc.  But  this  gets 
tiresome,  and  we  are  only  half-way  tlirough  the  title 
after  all.     If  the  reader  wants  the  rest  of  it,  as  also 


THE  LA  W  REPORTERS.  155 

the  substantial  Act  itself,  whereof  it  is  the  title,  let 
him  turn  to  the  23d  of  Geo.  II.  cli.  26. 

Xo  Avonder,  if  he  anticipated  this  sort  of  thing, 
that  Bacon  should  have  commended  "  the  excellent 
brevity  of  the  old  Scots  acts."  Here,  for  instance, 
is  a  specimen,  an  actual  statute  at  large,  such  as  they 
were  in  those  pygmy  days  :  — 

"  Item,  it  is  statute  that  gif  onie  of  the  King's 
lieges  passes  in  England,  and  resides  and  remains 
there  against  the  King's  will,  he  shall  be  lialden  as 
Traiter  to  the  King." 

Here  is  another,  very  comprehensive,  and  worth  a 
little  library  of  modern  statute-books,  if  it  was  duly 
enforced :  — 

"Item,  it  is  statute  and  ordained,  that  all  our 
Sovereign  lord's  lieges  being  under  his  obeisance,  and 
especially  the  Isles,  be  ruled  by  our  Sovereign  lord's 
own  laws,  and  the  common  laws  of  the  realm,  and 
none  other  laws." 


"  nr~\ESCENDEIiE,  to  descend  or  to  spring  of  one's 
J-^  body;  hereupon  they  wliich  are  born  of  us 
are  called  by  the  name  of  descendants,  which  with 
them  that  ascend  make  the  right  line,  and  the  ascen- 
dants and  descendants  cannot  marry  together,  where- 
fore, if  Adam  were  now  living,  lie  could  not  marry  a 
wife."  1 

1  Fulbeckc  Study  of  the  Laws,  p.  203. 


156  CURIOSITIES   OF 

ON  the  trial  of  the  Seven  Bishops,  during  the 
amiunent  of  the  Solicitor-General  who  was 
of  counsel  for  the  King,  Mr.  Justice  Powell  observed 
to  the  Lord  Chief  Justice,  "  My  Lord,  this  is  wide. 
!Mr.  Solicitor  would  impose  upon  us :  let  him  make  it 
out,  if  he  can,  that  the  King  has  such  a  power,  and 
answer  the  objections  made  by  the  defendants'  coun- 
sel." Lord  Chief  Justice :  "  Brother,  impose  upon 
us  !  Ue  shall  not  impose  upon  me  ;  I  know  not  what 
lie  may  upon  you ;  for  my  part,  I  do  not  believe  one 
word  lie  says."  ^ 

V/- 

"  rr^lIE  law  does  not  recognize  the  dreams,  visions, 
-L  or  revelations  of  a  woman  in  a  mesmeric  sleep 
as  necessaries  for  a  wife,  for  wliich  the  husband,  with- 
out his  consent,  can  be  held  to  pay.  These  are  fancy 
articles,  which  those  who  have  money  of  their  own  to 
dispose  of  may  purchase,  if  they  think  proper ;  but  they 
are  not  necessaries,  known  to  the  law,  for  which  the 
wife  can  pledge  the  credit  of  her  absent  husband."  ^ 

?l\ 

IrtE]\IE]\rBEri,"  writes  Lambard,"  that,  not  many 
years  since,  women  were  punished  in  the  Star- 
Chamber,  and  that  worthily,  for  that,  having  put  off 
their  seendy  shamefacedness  and  apparelling  them- 
selves in  the  attire  of  men,  they  assembled  in  great 
number,  and  riotou.sly  pulled  down  an  enclosure."  ^ 

1  12  Howell  State  Trials  183. 

2  .Tudgment  in  Wood  v.  O'Kelley,  8  Cush.  p.  408. 
a  Eirenarcha,  179,  A.  D.  1581. 


THE  LA]V   REPORTERS.  157 

LORD  DEXMAN,  delivering  judgment  in  the 
House  of  Lords,  in  a  celebrated  case,  took  oc- 
casion to  remark,  that  a  large  portion  of  the  legal 
ojnnioii  which  has  passed  current  for  law  falls  with- 
in the  description  of  "  law  taken  for  granted  "  ;  and 
that,  "  when,  in  the  pursuit  of  truth,  we  are  obliged 
to  investigate  the  grounds  of  the  law,  it  is  plain,  and 
has  often  been  proved  by  recent  experience,  that  the 
mere  statement  and  restatement  of  a  doctrine  —  the 
mere  repetition  of  the  cantilena  of  lawyers  —  cannot 
make  it  law,  unless  it  can  be  traced  to  some  com- 
petent authority,  and  if  it  be  irreconcilable  to  some 
clear  legal  principle."  ^ 

IX  a  recent  case  in  Indiana,  after  the  jury  had  re^ 
tired  to  deliberate  upon  their  verdict,  the  bailiff, 
without  the  consent  of  the  defendant,  or  the  leave  of 
the  court,  furnished  to  them,  at  their  request,  a  volume 
of  Bishop's  Criminal  Law.  This  was  lield  to  be  mis- 
conduct, botli  on  the  part  of  the  officer  and  the  jury, 
and  such  as  to  entitle  the  defendant  to  a  new  trial.^ 


FUCATUS  error  nuda  ^'eritate  in  multis  est  pro- 
babilior  et  saepenumero  rationibus  viucit  veri- 
tatem  error.  —  2  Rep.  7'2h. 

1  O'Connell  v.  The  Queen,  11  Clark  Hz  Finnelly,  p.  373.    And  see  per 
Pollock,  C.B.,  2  II.  &  N.  130. 

^  Newkirk  v.  The  State,  27  Indiana,  1. 


158  CURIOSITIES   OF 

DT;-^SEXTIXG  opinion  of  Mr.  Justice  Livingston 
in  Piersou  v.  Post :  ^  — 

"  My  opinion  differs  from  that  of  tlie  court.  Of  six 
exceptions  taken  to  the  proceedings  below,  all  are 
abandoned  except  tlie  third,  which  reduces  the  con- 
troversy to  a  single  question. 

"  "Whether  a  person  who,  with  his  own  hounds, 
starts  and  hunts  a  fox  on  waste  and  uninhabited 
ground,  and  is  on  the  point  of  seizing  his  prey,  ac- 
quires such  an  interest  in  the  animal  as  to  have  a  right 
of  action  against  another,  who  in  view  of  the  hunts- 
man and  his  dogs  in  full  pursuit,  and  with  knowledge 
of  the  chase,  shall  kill  and  carry  him  away  ? 

"  This  is  a  knotty  point,  and  should  have  been  sub- 
mitted to  the  arbitration  of  sportsmen,  without  j^oring 
over  Justinian,  Fleta,  Bracton,  Pufifendorf,  Locke, 
Barbeyrac,  or  Blackstone,  all  of  whom  have  been 
cited ;  they  would  have  had  no  difficulty  in  coming 
to  a  prompt  and  correct  conclusion.  In  a  court  thus 
constituted,  the  skin  and  carcass  of  poor  reynard 
would  have  been  properly  disposed  of,  and  a  precedent 
set,  interfering  with  no  usage  or  custom  wdiich  the 
experience  of  ages  has  sanctioned,  and  which  must  be 
so  well  known  to  every  votary  of  Diana.  But  the 
parties  have  refeiTed  the  question  to  our  judgment, 
and  we  must  dispose  of  it  as  well  as  we  can,  from  the 
partial  lights  we  possess,  leaving  to  a  higher  tribunal 
the  correction  of  any  mistake  which  we  may  be  so 

1  SCaines,  175,  180. 


THE  LAW  REPORTERS.  159 

unfortunate  as  to  make.  By  the  pleadiugs  it  is 
admitted  that  a  fox  is  a  '  wild  and  noxious  beast.' 
Both  parties  have  regarded  him,  as  the  law  of  nations 
does  a  pirate,  '  liostem  humani  generis,'  and  although 
'  de  mortuis  nil  nisi  bonum '  be  a  maxim  of  our  pro- 
fession, the  memory  of  the  deceased  has  not  been 
spared.  His  depredations  on  farmers  and  on  barn- 
yards have  not  been  forgotten ;  and  to  put  him  to 
death  wherever  found  is  allowed  to  be  meritorious, 
and  of  public  benefit.  Hence  it  follows,  that  our 
decision  should  have  in  view  the  greatest  possible 
encouragement  to  the  destruction  of  an  animal  so 
cunning  and  ruthless  in  his  career.  But  who  would 
keep  a  pack  of  hounds  ?  or  what  gentleman,  at  the 
sound  of  the  horn,  and  at  peep  of  day,  would  mount 
his  steed,  and  for  liours  together,  '  sub  jove  frigido/ 
or  a  vertical  sun,  pursue  the  windings  of  this  wily 
(|uadruped,  if,  just  as  night  came  on,  and  his  strata- 
gems and  strength  were  nearly  exhausted,  a  saucy  in- 
truder, who  had  not  shared  in  the  honors  or  labors 
of  the  chase,  were  permitted  to  come  in  at  the  death, 
and  bear  away  in  triumph  the  object  of  pursuit  ? 
Whatever  Justinian  may  have  thought  of  the  matter, 
it  nuist  l)e  recollected  that  his  Code  was  compiled 
many  hundred  years  ago,  and  it  would  be  very  hard 
indeed,  at  the  distance  of  so  many  centuries,  not  to 
have  a  right  to  establish  a  rule  for  ourselves.  In  his 
day,  we  read  of  no  order  of  men  who  made  it  a 
business,  in  tlie  language  of  the  declaration  in  this 

'  DO 


IGO  CURIOSITIES  OF 

cause, 'with  hounds  and  dogs  to  find,  start,  pursue, 
hunt,  and  chase '  these  animals,  and  that,  too,  without 
any  other  motive  than  the  preservation  of  lioman 
poultry ;  if  this  diversion  had  been  then  in  fashion, 
the  lawyers  who  composed  his  Institutes  would  have 
taken  care  not  to  pass  it  l)y  without  suitable  en- 
couragement. If  anything,  therefore,  in  the  Digests 
or  Pandects  shall  appear  to  militate  against  the  de- 
fendant in  error,  who  on  this  occasion  was  the  fox- 
hunter,  we  have  only  to  say  tempera  mutantur  ;  and 
if  men  themselves  change  with  the  times,  why  should 
not  laws  also  undergo  an  alteration  ? 

"  It  may  be  expected,  however,  by  the  learned 
counsel,  that  more  particular  notice  be  taken  of  their 
authorities.  I  have  examined  them  all,  and  feel  great 
dithculty  in  determining,  whether  to  acquire  dominion 
over  a  thing,  before  in  common,  it  be  sufficient  that 
we  barely  see  it,  or  know  where  it  is,  or  wish  for  it, 
or  make  a  declaration  of  our  will  respecting  it;  or 
whether,  in  the  case  of  wild  beasts,  setting  a  trap,  or 
lying  in  wait,  or  starting,  or  pursuing,  be  enough; 
or  if  an  actual  wounding,  or  killing,  or  bodily  tact  and 
occupation  be  necessary.  Writers  on  general  law, 
who  have  favored  us  with  their  speculations  on  these 
points,  differ  on  them  all ;  but,  great  as  is  the  diver- 
sity of  sentiment  among  them,  some  conclusion  must 
be  adopted  on  the  question  immediately  before  us. 
After  mature  deliberation,  I  embrace  that  of  Bar- 
beyrac  as  the  most  rational,  and  least  liable  to  objec- 


THE  LAW  REPORTERS.  161 

tion.  If  at  liberty,  we  miglit  imitate  the  courtesy  of 
a  certain  emperor,  who,  to  avoid  giving  offence  to  the 
advocates  of  any  of  these  different  doctrines,  adopted 
a  middle  course,  and  by  ingenious  distinctions  ren- 
dered it  difficult  to  say  (as  often  happens  after  a 
fierce  and  angTy  contest)  to  whom  the  palm  of  victory 
belonged.  He  ordained  that  if  a  beast  be  followed 
with  large  dogs  and  hounds,  he  shall  belong  to  the 
hunter,  not  to  the  chance  occupant ;  and  in  like 
manner  if  he  be  killed  or  wounded  with  a  lance  or 
sword ;  but  if  chased  with  beagles  only,  then  he 
passed  to  the  captor,  not  to  the  first  pursuer.  If  slain 
with  a  dart,  a  sling,  or  a  bow,  he  fell  to  the  hunter,  if 
still  in  chase,  and  not  to  him  who  miglit  afterwards 
find  and  seize  him. 

"  Xow,  as  we  are  without  any  municipal  regulations 
of  our  own,  and  the  pursuit  here,  for  aught  that 
appears  on  tlie  case,  being  with  dogs  and  liounds  of 
imperial  stature,  we  are  at  liberty  to  adopt  one  of  the 
])rovisions  just  cited,  ^-hich  comports  also  with  the 
learned  conclusion  of  Barbeyrac,  that  property  in 
animals  ferae  naturae  may  be  acquired  without  bodily 
touch  or  manucaption,  provided  the  pursuer  be  within 
reach,  or  liave  a  reasonable  prospect  (which  certainly 
existed  liere)  of  taking  what  he  has  thus  discovered 
an  intention  of  converting  to  his  own  use. 

"When  we  reflect  also  that  tlie  interest  of  our 
husljandiuen,  the  most  useful  of  men  in  any  com- 
munity, will  be  advanced   by    the    destruction    of  a 


162  CURIOSITIES   OF 

beast  so  pernicious  and  incorrigible,  \ve  cannot  greatly 
err  in  saying  tliat  a  pursuit  like  the  present,  through 
waste  and  unoccupied  lands,  and  which  must  inevitably 
and  speedily  have  terminated  in  corporal  possession  or 
bodily  seisin,  confers  such  a  riglit  to  the  object  of  it, 
as  to  make  any  one  a  wrong-doer  who  shall  interfere 
and  slioulder  the  spoil." 

THE  following  case  is  curiously  suggestive  of  the 
state  of  the  country  round  London  in  the  days 
when  much  business  was  done  on  the  road :  ^  A  bill 
in  the  Exchequer  was  brouglit  by  Everett  against  a 
certain  Williams,  setting  forth  that  the  complainant 
was  skilled  in  dealing  in  certain  connnodities,  "  such 
as  plate,  rings,  watches  etc.,"  and  that  the  defendant 
desired  to  enter  into  partnership  with  him.  They 
entered  into  partnership  accordingly,  and  it  w^as 
agreed  tliat  they  should  provide  the  necessary  plant 
fortlie  business  of  the  firm  —  such  as  horses,  saddles, 
bridles  etc.  (pistols  not  mentioned) — and  should 
participate  in  the  expenses  of  the  road.  Tlie  decla- 
ration then  proceeds,  "  And  your  orator  and  the  said 
Joseph  AVilliams  proceeded  jointly  with  good  success 
in  the  said  business  on  Hounslow  Heath,  wlici'e  tliey 
dealt  witli  a  gentleman  for  a  gold  watch  ;  and  after- 
wards the  said  Joseph  Williams  told  your  orator  that 
Finchley  in  tlie  county  of  ^liddlesex  was  a  good  and 
convenient  place  to  deal  in,  and  that  commodities 

1  The  Book-IIuuter,  p.  138. 


THE  LAW  REPORTERS.  163 

were  very  plenty  at  Finchley  aforesaid,  and  it  would 
be  almost  all  clear  gain  to  them  ;  that  they  went 
accordingly,  and  dealt  with  several  gentlemen  for 
divers  watches,  rings,  swords,  canes,  hats,  cloaks, 
horses,  bridles,  saddles,  and  other  things ;  that  about 
a  month  afterwards  the  said  Joseph  Williams  in- 
formed your  orator  that  there  was  a  gentleman  at 
Blackheath  who  had  a  good  horse,  saddle,  bridle, 
watcli,  sword,  cane,  and  other  things  to  dispose  of, 
which,  he  believed,  might  be  had  for  little  or  no 
money;  that  they  accordingly  went,  and  met  with 
the  said  gentleman,  and,  after  some  small  discourse, 
they  dealt  for  the  said  horse  etc.  That  your  orator 
and  the  said  Joseph  Williams  continued  their  joint 
dealings  together  in  several  places  —  viz.,  at  Bagshot 
in  Surrey,  Salisbury  in  Wiltshire,  Hampstead  in 
^Middlesex,  and  elsewhere  —  to  the  amount  of  £2,000 
and  upwards."  ^ 


AN  action  was  tried  before  Lord  Holt  on  a  wager 
whether  a  person  playing  at  backgammon, 
Laving  stirred  one  of  his  men  without  moving  it 
from  the  point,  was  bound  to  play  it,  and  that  venera- 
Ijle  judge  called  in  tlie  assistance  of  tlie  groom  porter 
to  decide  tlie  controversy.^ 

1  This  cuse  hsis  been  often  referred  to  in  law-book?,  but  I  have  never 
met  with  so  full  a  .«latemciit  of  the  contents  of  tlie  declaration  as  in  the 
Retrosipective  Review,  Vol.  V.  p.  fil. 

2  I'ope  0.  St.  Leger,  1  Sulk.  344. 


164  CURIOSITIES   OF 

I'  ORD  EAYMOND  thus  concludes  the  report  of 
-^  a  celebrated  case :  "  Note,  that  this  judgment 
was  very  distasteful  to  some  Lords  ;  and  therefore  the 
Lord  Chief  Justice  Holt  was  summoned  to  give  his 
reasons  of  this  judgment  to  the  House  of  Peers,  and 
a  committee  was  appointed  to  hear  and  report  them 
to  the  House,  of  which  the  Earl  of  Eochester  was 
chairman.  But  the  Chief  Justice  Holt  refused  to 
give  them  in  so  extrajudicial  a  manner.  But  he  said 
that  if  the  record  was  removed  before  the  Peers  by 
error,  so  that  it  came  judicially  before  them,  he  would 
give  his  reasons  very  willingly  ;  but  if  he  gave  them 
in  this  case,  it  would  be  of  very  ill  consequence  to  all 
judges  hereafter,  in  all  cases.  At  which  answer  some 
Lords  were  so  offended  that  they  would  have  com- 
mitted the  Chief  Justice  to  the  Tower.  But,  notwith- 
standing, all  their  endeavors  vanished  in  smoke."  ^ 

A\ 

THE  bar  and  the  public  would  be  astonished,  at 
the  present  day,  to  hear  one  of  the  learned 
judges  of  the  Court  of  Queen's  Bench,  in  giving 
judgment  in  some  important  case,  pursue  a  line  of 
observation  similar  to  that  which  we  find  in  the 
decision  of  that  court  in  a  once  celebrated  case.^ 
Mr.  Justice  Catline,  speaking  of  a  fine,  levied  in 
pursuance  of  the  4  Henry  VII.,  comi)ared  it  to 
"  Janus,  who,  he  said,  was  Noah,  but  the  liomans 
occasionally  called  him  Janus,  and  used  to  paint  him 

1  1  Ld.  I!aym.  10,  18.  2  Stowe  v.  Lord  Zoucli,  I'lowden,  353. 


THE   LAW  REPORTERS.  165 

with  two  faces,  —  one  looking  backwards,  in  respect 
that  he  had  seen  the  former  world,  which  was  lost  by 
the  flood,  and  the  other  looking  forwards, — for  which 
reason  they  called  him  Janns  bifrons.  And  also  he 
carried  a  key  in  his  hand,  his  power  to  renew  the 
new  world  by  his  generation.  So  here  the  act  creates, 
as  it  were,  a  flood,  by  which  all  former  rights  before 
the  fine  shall  l)e  drowned  by  non-claim,  for  non-claim 
is  the  flood,  and  the  fine  begets  a  new  generation, 
which  is  the  new  right,  for  the  fine  makes  a  new 
right  and  is  the  beginning  of  a  new  world,  which 
proceeds  from  the  time  of  the  fine  downwards." 


IiST  Mr.  Bishop's  excellent  book  on  Criminal  Pro- 
cedure ^  is  this  passage  :  — 
"  What  the  lawyers  of  our  day  most  need,  while  de- 
scending from  the  clear  heights  of  legal  principle  to 
the  vale  below  on  a  fast-whirling  avalanche  of  de- 
cisions, is  to  be  made  cognizant,  before  it  is  too  late, 
of  the  lavj  of  the  motion  of  the  avalanche,  in  order  to 
strike  uppermost  when  it  lirealvs,  instead  of  being 
cruslied  and  ground  to  powder  l)eneath.  Unhappily, 
most  do  not  perceive,  at  present,  that  the  avalanche 
is  ever  to  break,  or  ever  to  stop,  or  ever  to  turn.  If 
Scripture  might  be  quoted  in  a  law-book,  the  author 
would  say  :  '  He  that  liath  an  ear  to  hear,  let  liim 
iiear.'  This  liint  is  meant  to  be  read  only  by  those 
wlio  have  ears." 

1  Vol.  II.  §  413. 


166  CURIOSITIES   OF 

IT  is  a  remarkable  tiling  that  a  man  should  be  sen- 
tenced "  to  stand  in  the  pillory,  lose  his  ears,  pay 
a  fine  of  £5,000  and  be  perpetually  imprisoned  in  a 
distant  fortress,"  and  become  one  of  the  chief  causes 
of  great  civil  wars,  on  account  of  an  unfortunate 
word  or  two  in  the  last  page  of  a  book  containing 
more  than  a  thousand.  It  was  as  far  down  in  his 
very  index  as  ''  W  "  that  the  great  offence  in  Prynne's 
Histrio  ^Nlastyx  was  found,  under  the  head  "  Women 
actors  notorious  whores."  ^  It  M'as  a  very  odd  compli- 
ment to  Queen  Henrietta  Maria  to  presume  that  these 
words  nnist  refer  to  her.  The  Histrio  IMastyx  was,  in 
fact,  so  big  and  so  complex  a  thicket  of  confusion, 
that  it  had  been  licensed  without  examination  by  the 
licenser,  who  perhaps  trusted  that  the  world  \\'ould 
have  as  little  inclination  to  peruse  it  as  he  had.  The 
calamitous  discovery  of  the  sting  in  the  tail  must 
surely  have  been  made  by  a  Hebrew  or  an  Oriental 
student,  who  mechanically  looked  for  the  connnence- 
ment  of  the  Histrio  IMastyx  where  he  would  have 
looked  for  that  of  a  Hebrew  Bible.  Successive 
licensers  had  gi^'en  the  work  a  sort  of  go-by,  but, 
reversing  the  order  of  the  sibylline  books,  it  became 
always  larger  and  larger,  until  it  found  a  licenser 
who,  with  the  notion  that  he  "  must  put  a  stop  to 
this,"  fjassed  it  without  examination.  It  got  a  good 
deal  of  reading  immediately  afterwards,  especially 
from  Attorney-General  Noy,  who  asked   the   Star- 

1  3  Howell  State  Trials,  725. 


THE  LAW  REPORTERS.  1G7 

Chamber  what  it  had  to  do  with  the  immorality  of 
stage-plays  to  exclaim  that  church-music  is  not  the 
noise  of  men,  but  rather  "  a  bleating  of  brute  beasts, 
—  choristers  bellow  the  tenor  as  it  were  oxen,  bark  a 
counterpoint  as  a  kennel  of  dogs,  roar  out  a  treble 
like  a  set  of  bulls,  grunt  out  a  bass  as  it  were  a 
number  of  hogs."  But  Mr.  Attorney  took  surely  a 
more  nice  distinction  when  he  made  a  charge  ajrainst 
the  author  in  these  terms  :  "  All  stage-players  he 
terms  them  rogues  :  in  tliis  he  doth  falsify  the  very 
Act  of  Parliament ;  for  unless  tlicy  go  abroad,  they  are 
not  roLTues." 


BY  St.  1  Car.  I.  ch.  1,  no  persons  shall  assemble, 
out  of  their  own  parishes,  for  any  sport  wliat- 
soever,  on  Sunday ;  nor,  in  their  parishes,  shall  use 
any  hull  or  hear  haitinrj,  interlades,  plays,  or  other 
uulawful  exercises  or  pastimes.  "  Tlie  Puritans  hated 
bear-baiting,"  wrote  Macaulay,  "  not  because  it  gave 
])ain  U)  the  bear,  but  because  it  gave  pleasure  to  the 
.spectators."  ^ 


IX   Chudleigh's  Case  one  of   the  judges  drew    a 
parallel  between  Nebuchadnezzar's  tree  and  the 
Statute  of  Uses.2 

1  History  of  England,  Vol.  I.  ch.  2.  Even  bear-baiting;  was  esteemed 
lieathenisli  and  uiicliristian  ;  tlie  sport  of  it,  not  the  inhumanity,  gavo 
ofTence.     Hume  History  of  Enghuid,  \'ol.  I.  ch.  C'2. 

2  1  Rep.  1346. 


168  CURIOSITIES   OF 

AT  the  commencement  of  the  reign  of  Edward 
VI.  an  act  was  passed  from  which  no  very  favor- 
able inference  can  be  drawn  as  to  the  morals,  habits, 
or  accomplishments  of  the  English  nobility  in  the 
middle  of  the  sixteenth  century.  Housebreaking  by 
day  or  by  night,  highway  robbery,  horse-stealing,  and 
the  felonious  taking  of  goods  from  a  churcli,  having 
been  made  capital  offences,  it  was  provided  "  that  any 
Lord  or  Lords  of  the  Parliament  (to  include  Arch-' 
bishops  and  Bishops),  and  any  Peer  or  Peers  of  the 
realm  having  place  and  voice  in  Parliament,  being 
convicted  of  any  of  the  said  offences  for  the  first 
time,  upon  his  or  their  request  or  prayer,  though  he 
cannot  read,  be  allowed  benefit  of  clergy,  and  be  dis- 
charged without  any  burning  in  the  hand,  loss  of  in- 
heritance, or  corruption  of  blood."  It  seems  strange 
to  us,  says  Lord  Campbell,  that  this  privilege  of  peer- 
age should  have  been  desirable,  or  should  have  been 
conceded ;  but  it  continued  in  force  till  taken  away 
by  an  act  passed  after  tlie  trial  of  Lord  Cardigan  in 
the  reign  of  Queen  Victoria.^ 


ONE  was  ordered  by  the  judge  of  assize  to  be 
hanged  in  chains ;  the  officer  hung  him  in 
privato  solo  ;  the  owner  brought  trespass ;  and  upon 
not  guilty  the  jury  found  for  the  defendant,  and  the 
court  would  not  grant  a  new  trial,  it  being  done  for 

1  Lord  Campbell  Lives  of  the  Chancellors,  Vol  IL  p.  169, 


THE  LAW  RErORTERS.  169 

convenience  of  place,  and  not  to  affront  the  owner.  ^ 
Holt  Chief  Justice :  "  If  a  man  be  hung  in  chains 
upon  my  land,  after  the  body  is  consumed,  I  shall  have 
gibbet  and  chain."  ^ 


ME.  JUSTICE  EEDFIELD  thus  speaks  of  the 
celebrated  case  of  Cornfoot  v.  Fowke:^ 
"  This  case  is  certainly  a  most  remarkable  instance 
of  self-delusion,  brought  about  by  the  severity  of 
one's  own  discriminations.  Lord  Abinger,  who  dis- 
sented from  the  opinion  of  the  majority  of  the  judges, 
seems  to  have  readily  comprehended  the  delusion 
under  which  his  brethren  were  laboring,  as  indeed  he 
always  did  all  intricacies  of  thought  and  language." 
And  after  stating  the  opinion  of  the  majority  of  the 
court  in  Cornfoot  v.  Fowke,  he  continues :  "  One  is 
almost  compelled  to  doubt  if  indeed  these  men  *  can 
be  serious.  It  almost  strikes  the  mind  as  matter 
of  mere  badinage.  It  is  scarcely  surpassed,  in  its 
ethical  or  metaphysical  acumen,  by  the  sophistry  of 
the  ancient  schoolmen,  by  which  it  was  attempted  to 
be  proved,  by  syllogistic  reasoning,  that  in  a  foot-race 
Hercules  never  could  overtake  the  lobster."  ^ 

1  Sparks  v.  Spicer,  2  Salk.  648. 

2  1  Lrl.  Raym.  738. 

8  6  JI.  &  W.  .358.    This  case,  though  questioned,  lias  never  been  over- 
ruled. 

■*  "  These  men  "  were  Baron  Rolfe,  Baron  Alderson,  and  Baron  Parke. 

6  The  learned  judpo  probably  had  a  dim  recollection  of  the  story  of 
Achilles  and  the  tortoise. 
8 


170  CURIOSITIES   OF 

IN  Fuller's  "  Worthies  "  are  quaint  descriptions  of 
the  "  men  of  the  law  "  :  — 

Coke.  —  His  most  learned  and  laborious  works  on 
the  laws  will  last  to  be  admired  by  the  judicious 
posterity  whilst  Fame  hath  a  trumpet  left  her,  and 
any  breath  to  blow  therein. 

Plowdex.  —  How  excellent  a  medley  is  made, 
when  honesty  and  ability  meet  in  a  man  of  liis  pro- 
fession ! 

St.  Gekmaix.  —  Pveader,  wipe  thine  eyes,  and  let 
mine  smart,  if  thou  readest  not  what  richly  deserves 
thine  observation  ;  seeing  he  was  a  person  remarkable 
for  his  gentility,  piety,  chastity,  charity,  ability,  in- 
dustry, and  vivacity Witness  his  book  called 

"The  Doctor  and  Student,"  where  the  former  vies 
divinity  with  the  law  of  the  latter. 


I 


N  I^Iassachusetts  it  is  still  an  open  question, 
whether  if  a  whale  happened  to  be  stranded  on 
the. shore  on  the  Lord's  day,  it  would  be  lawful  to 
work  on  that  day  to  capture  him.^  But  it  is  settled 
that  an  averment  that  the  defendant  hoed  "in  his 
field  "  on  the  Lord's  day  is  supported  by  evidence  that 
on  that  day  he  hoed  "  in  a  field  in  a  part  of  his 
garden."  ^ 

1  Coramonwcalth  v.  Sampson,  97  Mass.  p.  410. 

2  Commonwealth  v.  Josselyn,  97  Mass.  411. 


THE  LAW  REPORTERS.  171 

IX  Brownlow  Eedivivus,  p.  505,  there  is  a  singular 
entry.  The  marginal  note  runs  thus :  "  Count 
per  la  Coachmaker's  Widow  vers  le  Frenchhome. 
Eo  quod  defendens  simul  cum  etc.  in  querentem  in- 
sultum  fecit,  et  ipsam  intoxicavit,  et  ad  lectum  ei 
ignotum  adduxit,  et  illam  super  lectum  istum  de- 
posuit,  et  in  isto  lecto  cum  querenti  contra  volunta- 
tem  suam  impudenter  recubuit,  et  se  intrusit." 


EAITHBY'S  Edition  of  Vernon's  Eeports.  There 
is  a  famous  dedication  "  with  a  double  aspect," 
of  this  book  to  Lord  Eldon,  by  the  editor,  who,  after 
obtaining  permission  to  dedicate  it  to  him,  and  before 
tlie  book  was  published,  seeing  his  intended  patron 
suddenly  turned  out  of  office,  after  some  compliments 
to  departing  greatness,  says,  "  but  your  felicity  is  that 
you  contemplate  in  your  successor  (Lord  Erskine) 
a  person  whose  judgment  will  enable  him  to  appre- 
ciate your  merits,  and  whose  talents  have  procured 
him  a  name  among  the  eminent  lawyers  of  his 
country." 


YESEY  JUXIOE.  "I  knew  this  gentlemart 
well,"  says  Lord  Campliell.  "When  near  eighty 
he  was  still  called  'Vesey  Junior,'  to  distinguish  him 
from  his  father,  '  Vesey  Senior.' " 


172  CURIOSITIES   OF 

BE  ACTON  accounts  for  the  old  rule  t)f  law,  "  that 
inheritance  may  literally  descend,  hut  not  as- 
cend," upon  the  principle  of  gravitation,  —  the  bowl 
rolls  down  the  hill,  but  never  rolls  up.  Littleton 
thus  explains  the  doctrine  of  "hotchpot"  :  "It  seem- 
eth  that  this  word  '  hotch-pot '  is  in  English  a  pud- 
ding ;  for  in  this  pudding  is  not  commonly  put  one 
thing  alone,  but  one  thing  with  other  things  together." 


AN  old  law-tract  assumes  to  give  in  this  simple 
language  the  origin  of  the  tenancy  by  the  law, 
or  courtesy  of  England :  "  It  was  called  the  law  of 
England  because  it  was  invented  in  England  on  be- 
half  of  poor  gentlemen  who  married  gentlewomen, 
and  had  nothing  wherewith  to  support  themselves 
after  their  wives'  death." 


FEW  cases  are  more  laughable  than  that  whicli 
describes  the  arithmetical  process  by  which 
Baron  Perrot  arrived  at  the  value  of  certain  conflict- 
ing evidence.  "  Gentlemen  of  the  jury,"  this  judge 
is  reported  to  have  said,  in  summing  up  the  evidence 
in  a  trial  where  the  witnesses  had  sworn  with  noble 
tenacity  of  purpose,  "  there  are  fifteen  witnesses  who 
swear  that  the  watercourse  used  to  flow  in  a  ditch 
on  the  north  side  of  the  hedge.  On  the  other  hand, 
gentlemen,  there  are  nine  witnesses  who  swear  that 


THE  LAW  REPORTERS.  173 

the  watercourse  used  to  flow  on  the  south  side  of  the 
hedge.  Now,  gentlemen,  if  you  subtract  nine  from 
fifteen,  there  remain  six  witnesses  wholly  uncontra- 
dicted ;  and  I  recommend  you  to  give  your  verdict 
for  the  party  who  called  those  sLx  witnesses." 


ACERTAIX  earl,  having  estates  in  Sussex,  Glou- 
cester, and  elsewhere,  gave  instructions  to  his 
solicitor  to  prepare  a  will,  which  was,  inter  alia,  to 
give  to  his  surviving  countess  a  life  estate  in  his 
estates  in  Sussex  and  Gloucester.  The  solicitor  pre- 
pared a  written  will,  in  conformity  with  his  noble 
client's  instructions,  and  laid  it  before,  to  be  settled 
Ijy,  a  no  less  eminent  conveyancer  than  the  late  ac- 
complished and  learned  ]\Ir.  Butler.  In  due  time  the 
will  was  returned  by  him ;  and,  having  been  fairly 
copied  out,  was  taken  by  the  solicitor  to  his  client  to 
be  executed,  —  the  solicitor  having  also  with  him  the 
abstract  of  the  will  as  originally  prepared.  This  only, 
and  not  the  fair  copy  brought  to  be  executed,  was 
read ;  and  as  it  represented  that  a  life-estate  had  been 
given  to  the  countess,  in  conformity  with  the  earl's 
intention,  as  well  in  the  Gloucester,  as  the  Sussex 
estate,  he  executed  his  will,  believing  it  to  be  in  ex- 
act conformity  with  the  abstract ;  and  in  that  Ijclief 
he  died,  lint  behold  !  it  turned  out  that  by  some  ac- 
cident the  Avord  "  Gloucester"  had  been  struck  out  by 
the  great  conveyancer;  and  the  person  making  the 


174  CURIOSITIES   OF 

fair  copy  of  the  will  not  only  omitted  the  word 
"  Gloucester,"  hut  changed  the  word  "  counties  "  into 
"  county,"  doubtless  conceiving  that  he  thereby  carried 
out  precisely  the  intention  apparent  in  the  draught .' 
Thus  the  will  was  a  total  blank  "as  to  the  Gloucester 
estate,  which  was  worth  nearly  £14,000  a  year !  The 
consternation  of  all  parties,  but  especially  of  countess, 
conveyancer,  and  solicitor,  may  be  imagined ;  and 
two  suits  ^  were  forthwith  instituted  before  the  then 
Vice-Chancellor,  Sir  John  Leach,  —  one  by  the  new 
earl,  for  the  execution  of  the  trusts  as  they  actually 
appeared  on  the  face  of  the  will ;  and  the  other  by  the 
dowager  countess,  praying  that  the  mistaken  omission 
of  her  life-estate  in  the  Gloucester  estate  might  be  rec- 
tified, and  that  the  trust  might  be  executed  as  so 
rectified.  The  Vice-Chancellor  refused  to  admit  the 
tendered  evidence  of  that  mistake,  though,  on  a  re- 
hearing, it  was  shown  by  the  distinguished  convey- 
ancer himself  how  the  purely  clerical  error  had  been 
committed: 2  and  his  refusal  was  sustained  by  the 
unanimous  opinion,  delivered  by  the  late  Lord  Tenter- 
den,  of  the  judges  summoned  to  assist  the  House  of 
Lords ;  which  decided  in  conformity  with  that  view, 
on  a  thoroughly  established  principle  as  to  the  non- 
admissibility  of  such  evidence  for  such  a  purpose.  It 
would  render  all  written  wills  and  instruments  worth- 
less ;  opening  the  door  to  those  endless  frauds  and 

1  The  Earl  of  Newburgh  v.  Countess  Dowager  of  Newburgh,  5  Madd. 
864. 

2  5  Madd.  367. 


THE  LAW  REPORTERS.  175 

perjuries  wliicli  it  had  been  one  great  object  of  the 
Statute  of  Frauds  to  prevent.  "  To  assume  such  a 
jurisdiction,"  said  the  court,  "  would  be  to  repeal  the 
Statute  of  Frauds  in  all  cases  of  failure,  by  mistake 
or  accident,  to  comply  with  it.  To  admit  parol 
evidence,  under  such  circumstances,  of  the  devisor's 
intention,  it  was  the  very  object  of  the  statute  to 
prevent."  ^ 


IX  Stokes  V.  Heron  ^  the  decision  turned  upon  the 
rule  in  Wild's  Case,  6  Coke's  Eeports,  166.  Sir 
Edward  Sugden  considered  that  Lord  Plunket  mis- 
apprehended the  nature  of  this  rule.  Lord  Brougham, 
in  delivering  his  opinion  in  the  House  of  Lords,  said  : 
"  Lord  Plunket  was  perfectly  accurate,  as  accurate  as 
it  was  possible  to  be,  in  his  reference  to  the  case  ;  Sir 
Edward  Sugden  thought  him  wrong,  probably  by 
looking  to  the  margin  instead  of  the  case."  Sir 
Edward  Sugden,  in  reference  to  this  observation,  says  : 
"  Tlie  learned  Lord  Brougliam  actually  confounded 

1  Miller  V.  Travers,  8  Biiip;.  254.  This  was  a  case  of  an  error  precisely 
similar  to  that  mentioned  in  the  text,  and  was  attended  with  the  like 
disastrous  results.  A  testator  executed  a  will,  under  the  impression  that 
it  contained  a  devise  of,  amongst  others,  "his  estates  in  the  cfmnly  of 
Clnre,"''  in  accordance  with  his  instructions,  and  with  the  draught  of  the 
will,  which  had  been  sent  to  a  conveyancer,  to  make  certain  alterations 
not  afTcctinp;  the  estates  in  question.  By  an  unfortunate  and  undetected 
mistake,  he  had  eraser!  the  critical  words,  "county  of  Clare",  the  will, 
as  executed,  consequently  omitteil  them;  and  parol  proof  of  these  facts 
was  rp|fctod,  on  the  |iriMci[)le  stated  in  the  text. 

2  12  Clark  &  Finnelly,  161. 


176  CURIOSITIES   OF 

the  decision  in  Wild's  Case  Avitli  tlie  resolntion,  which 
was  probably  a  dictum  invented  by  Lord  Coke  him- 
self " ;  and  adds,  "  The  only  edition  of  Coke's  Eeports 
that  Sir  Edward  Sugden  ever  had  is  one  in  which 
there  are  no  marginal  notes." 


ONE  of  the  most  remarkable  instances  on  record 
^\here  the  degree  of  impunity  to  wliich  counsel 
are  entitled  in  the  exercise  of  their  pnjfession  came 
in  question,  occurred  in  the  trial  of  John  Cook,  one 
of  the  regicides.  He  had  acted  as  solicitor-general  for 
the  Commomvealth  during  that  solemn  mockery  of 
justice  when  John  Bradshaw,  serjeant-at-law,  sat  as 
judge  upon  his  king;  and  in  tliat  capacity  he  had 
prayed  that  speedy  judgment  might  be  pronounced 
against  Charles  I.,  whom  he  styled  "  the  prisoner  at 
the  bar."  ^Yhen  tried  for  high  treason,  he  adroitly 
attempted  to  excuse  himself  on  tlie  ground  that  he 
had  no  participation  in  the  king's  death,  —  not  having 
formed  part  of  the  court  which  condemned  him,  and 
having  merely  discharged,  /or  his  fee,  the  duty  of  a 
counsel.  And  to  get  rid  of  the  objection  that  he  had 
demanded  the  judgment  of  the  court  which  tried  the 
king,  he  had  recourse  to  the  quibble,  that  his  words 
ouglit  to  l)e  taken  in  mitiore  sensu,  and  that  it  should 
be  presumed  that  jjerhaps  he  meant  a  judgment  of 
acquittal !  This  is  liis  argument :  "  j\Iy  Lord,  when 
judgment  is  demanded,  is  it  not  twofold,  of  acquittal 


THE  LAW  REPORTERS.  177 

or  condemnation  ?  If  those  that  then  were  intrusted 
with  the  power  of  judicature,  if  they  did  not  know 
any  law  to  proceed  by  to  take  away  his  Majesty,  then 
I  demanding  their  judgment,  it  doth  not  appear  to  be 
my  judgment;  and  I  refer  it  to  the  learned  counsel, 
that  counsel  many  times  at  the  assizes  and  other 
coLU-ts  have  been  sorry  that  the  verdict  has  been 
given  for  their  clients,  when  they  have  known  the 
right  lay  on  the  other  side,  and  so  I  might  in  this."  ^ 
And  with  reference  to  his  acts  being  only  those  of  an 
advocate,  and  therefore  innocent,  he  said :  "  My  Lord, 
I  humbly  answer  this,  to  that  which  seems  to  be  the 
most  material  part  in  the  indictment,  that  we  did 
assume  a  power  ;  my  Lords,  I  did  not  assume  a  power. 
I  hope  it  will  not  be  said  that  the  counsel  had  any 
power :  eloquentia  in  the  counsel,  judicium  in  the 
judges,  and  Veritas  in  the  witnesses,  25th  of  Acts, 
Tertullus,  that  eloquent  orator,  accused  Paul ;  Paul 
answered  for  himself,  and  it  is  said, '  Festus  being  will- 
ing to  do  the  Jews  a  courtesy,  he  left  Paul  bound ' ; 
it  was  not  the  counsel  that  left  him  bound:  his 
Majesty  was  never  a  prisoner  to  me,  and  I  never  laid 
my  hands  upon  him  ;  if  any  witnesses  have  spoken  of 
any  irreverence,  I  must  a])peal  to  God  in  that  I  did 
not  in  the  least  manner  carry  myself  undutifuUy  to 
liis  Majesty,  though  one  of  the  witnesses  was  pleased 
to  say  that  I  said  these  words,  'That  there  is  a 
charge  against  the  prisoner  at  the  bar ' ;  it  was  not 

1  5  riowell  S»!ito  Trials,  1094. 
8»  L 


178  CURIOSITIES   OF 

said  the  '  prisoner  at  the  bar ' ;  there  was  not  one  dis- 
respective  word  from  me.  Tliere  is  a  case  in  the 
Third  Institute  of  my  Lord  Coke  :  it  is  to  this  purpose, 
that  one  AvilfuUy  and  knowingly  forswore  liimself : 
the  case  was  put  to  inveigle  the  court;  and  though 
the  court  does  injustice  upon  a  false  oath,  it  is  not  in- 
justice at  all  in  the  witness,  it  is  perjury  in  him ;  if 
there  can  be  no  injustice  in  a  witness,  much  less  a 
counsellor  can  be  said  to  have  his  hand  in  the  death 
of  any,  because  he  has  no  power  at  all.  This  must 
needs  follow,  that  if  it  shall  be  conceived  to  be  trea- 
son for  a  couiisellor  to  plead  against  his  Majesty,  then 
it  will  be  felony  to  plead  against  any  man  that  is 
condemned  unjustly  for  felony.  The  counsellor  is  to 
make  the  best  of  his  client's  cause,  then  to  leave  it 
to  the  court."  ^  And  again,  "  I  must  leave  it  to  your 
consciences,  Avhether  you  believe  that  I  had  an  hand 
in  the  king's  death,  when  I  did  Avrite  but  only  that 
which  others  did  dictate  to  me,  and  when  I  spoke 
only  for  my  fee."  ^ 

Sir  Orlando  Eridgman,  however,  the  Lord  Chief 
Baron,  in  summing  up  the  case  to  the  jury,  disposed 
of  this  ingenious  defence  by  thus  addressing  the 
prisoner:  "Counsel  cannot  be  heard  against  the 
King  ;  you  undertake  to  be  counsel  against  the  King 
in  his  own  person  and  in  the  highest  crime ;  if  the 
counsel  at  the  bar  in  behalf  of  his  client  should 
speak  treason,  he  went  beyond  his  sphere  ;  but  you 
did  not  only  speak   (but  acted)  treason.     You  said 

1  5  Howell  State  Trials,  1093.  2  5  Howell  State  Trials,  1098. 


THE  LAW  REPORTERS.  179 

you  used  not  disrespective  words  to  the  King ;  truly, 
for  that  you  hear  what  the  witnesses  have  said  :  you 
pressed  upon  him  ;  you  called  it  a  delay  ;  you  termed 
him  not  the  king,  but  the  prisoner  at  the  bar,  at 
every  word.  You  say  you  did  not  assume  an  author- 
ity ;  it  is  an  assumption  of  authority  if  you  counte- 
nance or  allow  of  their  authority."  ^ 

Cook  was  found  guilty,  and  Avhen  brouglit  up  for 
judgment  he  made  a  last  desperate  effort  to  get  off 
by  the  same  plea.  Being  asked  what  he  had  to  say 
why  the  court  should  not  pronounce  judgment  upon 
him  to  die,  according  to  law,  he  urged  two  objections 
to  the  indictment,  which  were  overruled,  and  he  then 
said,  "  I  say  it  was  professionally." 

Lord  Chief  Baron :  "  That  hath  been  overruled 
already ;  we  have  delivered  our  opinions ;  the  pro- 
fession of  a  lawyer  will  not  excuse  them  or  any  of 
them  from  treason,  and  this  hath  been  overruled,  and 
is  overruled  again." 

So  Cook  suffered  the  death  of  a  traitor,  and  was 
hanged. 

^(\ 

AT  the  common  law  moderate  chastisement  of  a 
servant  might  be  justified  ;  and  to  an  action 
of  assault,  battery,  and  false  imprisonment,  it  was  a 
good  plea  "that  the  plaintiff,  being  a  lunatic,  the 
defendant  arrested  him,  confined  liim,  and  u-hippcd 

1  5  TIowoll  Stnte  Trinls,  1110. 

2  Lord  Ciimiihc'll  Lives  of  tlie  Chancellors,  Vol.  VL  p.  39  note. 


180  CURIOSITIES   OF 

1^  the  case  of  Norton  v.  Eelly,^  a  bill  was  filed  by 
a  luaideu  lady  residing  at  Leeds,  against  a  Method- 
ist preacher  and  others,  trustees  named  in  a  deed  of 
gift  executed  by  her  to  him,  —  suggesting  that  it  had 
been  obtained  by  undue  means,  —  and  praying  that 
it  might  be  delivered  up  to  be  cancelled.  He  had 
introduced  himself  to  her  notice  by  a  letter,  in  which 
he  said,  that,  "  although  unknown  to  her  in  the  flesh, 
from  the  report  he  had  of  her  he  made  bold  to  ad- 
dress her  as  a  fellow-member  of  that  consecrated 
body  wherein  the  fulness  of  the  Godhead  dwelt,  and 
that  he  was  coming  among  them  at  Leeds,  for  a  little 
time,  to  preach  the  kingdom  of  God,"  subscribing 
himself  "  her  affectionate  brother  in  the  flesh."  She 
was  prevailed  upon  to  invite  him  to  her  house,  to 
accompany  him  to  London,  to  give  him  large  sums 
of  ready  money,  and  to  grant  him  an  annuity  charged 
on  her  real  estates  in  Yorkshire. 

LoED  Chancellor  Henley.  —  This  cause,  as  it 
has  been  very  truly  observed,  is  the  first  of  the  kind 
that  ever  came  before  the  court,  and,  I  may  add, 
before  any  court  of  judicature  in  this  kingdom. 
Matters  of  religion  are  haj)pily  very  rarely  the  sub- 
ject of  dispute  in  courts  of  law  or  equity.  [After 
expressing  his  respect  for  dissenters,  he  proceeds :] 
But  very  wide  is  the  difference  between  dissenters 
and  fanatics,  whose  canting  and  whose  doctrines 
have  no  other  tendency  than  to  plunge  their  deluded 

1  2  Eden,  2S6. 


THE  LAW  REPORTERS.  181 

votaries  into  the  very  abyss  of  bigotry,  despair,  and 
enthusiasm.  And  though  even  against  those  un- 
happy and  false  pastors  I  would  not  wish  the  spirit 
of  persecution  to  go  forth,  yet  are  not  these  men  to 
be  discountenanced  and  discouraged  whenever  they 
are  properly  brought  before  courts  of  justice  ?. —  men 
who,  in  the  Apostle's  language,  go  about  and  creep  into 
people's  chvellings,  deluding  weak  women,  —  men  who 
go  about  and  diffuse  their  rant  and  warm  enthusiastic 
notions,  to  the  destruction  not  only  of  the  temporal 
concerns  of  many  of  the  subjects  of  this  realm,  but 
to  the  endangering  their  eternal  welfare.  And  shall 
it  be  said  that  this  court  cannot  relieve  against  the 
glaring  impositions  of  these  men  ?  that  it  cannot 
relieve  the  weak  and  unwary,  especially  when  the 
impositions  are  exercised  on  those  of  the  weaker  sex  ? 
This  court  is  the  guardian  and  protector  of  the  weak 
and  helpless  of  every  denomination,  and  the  punisher 
of  fraud  and  imposition  in  every  degree.  Here  is  a 
man,  nobody  knows  who  or  what  he  is  ;  his  own 
counsel  have  taken  much  pains  modestly  to  tell  me 
what  he  is  not,  and  depositions  have  been  read  to 
show  that  he  is  not  a  iMetliodist.  What  is  that  to 
me  ?  But  I  could  easily  have  told  them  what,  by  the 
proofs  in  this  cause  and  liis  own  letters,  he  ajipears 
to  be,  —  a  subtle  sectary,  who  preys  upon  liis  deluded 
hearers,  and  robs  them  under  the  mask  of  religion. 
Shall  it  be  said,  in  his  excuse,  that  this  lady  was  as 
great  an  enthusiast  as  himself?     It  is  true  that  she 


182  CURIOSITIES   OF 

was  far  gone,  —  but  not  far  enough  for  his  purpose. 
Thus  he  addressed  her,  "  Your  former  jyador  lias,  I  hear, 
excommunicated  you,  hut  put  yourself  in  my  congrega- 
tion, wherein  dwells  the  fidness  of  God."  How  scan- 
dalous, how  blasphemous,  is  this !  In  coming  from 
London  to  Leeds  he  will  not  come  in  a  stau-e-coach, 
but  must  have  a  post-chaise,  and  live  elegantly  on 
the  road  at  the  expense  of  the  plaintiff,  who  gave 
him  £  50  in  money,  besides  presents  of  liquor,  so 
that  his  own  hot  imagination  Avas  further  heated  with 
the  spirit  of  brandy.  He  secured  a  part  of  her  for- 
tune by  lighting  up  in  her  breast  the  flame  of  en- 
thusiasm, and  undoubtedly  he  hoped  in  due  time  to 
secure  the  whole  by  kindling  another  flame  of  which 
the  female  breast  is  so  susceptible  ;  for  the  invari- 
able style  of  his  letters  is  "  cdl  is  to  he  completed  hy 
love  and  union."  Let  it  not  be  told  in  the  streets  of 
London  that  this  preaching  sectary  is  only 'defending 
his  just  rights.  I  repeat,  let  not  such  men  be  per- 
secuted, but  many  of  them  deserve  to  be  represented 
in  puppet-shows.  I  have  considered  this  cause  not 
merely  as  a  private  matter,  but  of  public  concern- 
ment and  utility.  Bigotry  and  enthusiasm  have 
spread  their  baneful  influence  amongst  us  far  and 
wide,  and  the  unhappy  objects  of  the  contagion  al- 
most daily  increase.  Of  this,  not  only  Bedlam,  but 
most  of  the  private  madhouses,  are  melancholy  and 
striking  proofs.  Let  it  be  decreed  that  the  defendant 
execute  a  release  to  the  plaintiff  of  this  annuity,  and 


THE  LAW  REPORTERS.  183 

deliver  up  the  deed  for  securing  it.  I  cannot  con- 
clude without  observing  that  one  of  his  counsel,  with 
some  ingenuity,  tried  to  shelter  him  under  the  denom- 
ination of  "  an  independent  preacherr  I  have  tried 
in  this  decree  to  spoil  his  "  independency." 


LOPiD  COKE,  in  the  Fourth  Institute,  draws  a 
parallel  between  a  useful  member  of  Parlia- 
ment —  one  possessed  of  all  "  properties  a  parliament 
man  should  have  "  —  and  the  Solomon  of  the  bestial 
world,  to  wit,  the  elephant.  "  Every  member  of  the 
House,"  he  says,  "  being  a  counsellor,  should  have 
three  properties  of  the  elephant :  first,  that  lie  hath 
no  gall ;  secondly,  that  he  is  inflexible,  and  cannot 
bow  ;  thirdly,  that  he  is  of  a  most  ripe  and  perfect 

memory We  will  add  two  other  properties  of 

the  elephant,  —  the  one,  that  though  tliey  be  Maximae 
virtutis  et  maximi  intellectus,  of  greatest  strength 
and  understanding,  tamen  gregatim  semper  incedunt, 
yet  they  are  sociable,  and  go  in  companies.  Sociable 
creatures  that  go  in  flocks  or  herds  are  not  hurtful 
as  deer,  sheep  etc.,  but  beasts  that  walk  solely  or 
singularly,  as  bears,  foxes  etc.,  are  dangerous  and 
hurtful.  The  other,  that  the  elephant  is  Philanthro- 
pos,  homini  erranti  viam  ostendit  (a  philanthropist, 
who  showed  the  wanderer  his  road)  and  these  prop- 
erties ought  every  parliament  man  to  have." 


184  CURIOSITIES  OF 

"  TD  ROTHER  of  Winchester,"  said  Cranmer  to 
-L'  Lord  Chancellor  Gardyner,  "you  like  not  any- 
thing new,  unless  you  be  yourself  the  author  thereof." 
"Your  Grace  wrongeth  me,"  replied  the  inveterate 
Conservative.  "  I  have  never  been  author  yet  of  any 
one  new  thing ;  for  whicli  I  thank  my  God."  ^  "  Such 
a  conservatism,"  says  Sumner,^  "is  the  bigotry  of 
science,  of  literature,  of  jurisprudence,  of  religion,  of 
politics.     An  example  will  exhibit  its  character. 

"When  Sir  Samuel  Komilly  proposed  to  abolish 
the  punishment  of  death  for  stealing  a  pocket-hand- 
kerchief, the  Commons  of  England  consulted  certain 
officials  of  the  law,  who  assured  the  House  that  such 
an  innovation  would  endanger  tlie  whole  criminal  law 
of  the  realm.  And  when  afterwards  this  illustrious 
reformer  and  model  lawyer  (for,  of  all  men  in  tlie 
history  of  the  English  law,  Eomilly  was  most  truly 
the  model  lawyer)  proposed  to  abolish  the  obscene 
punishment  for  high  treason,  requiring  the  offender  to 
be  drawn  and  quartered,  and  his  bowels  to  be  thrown 
into  his  face,  while  his  body  yet  palpitates  with  life,^ 

1  Lord  Campbell  Lives  of  the  Lord  Chancellors,  Vol.  II.  p.  181,  5th  ed. 

2  Works,  Vol.  II.  p.  127. 

8  Lord  Coke,  in  detailing  this  barbarous  punishment,  finds  authority 
for  each  crueltj'  in  the  Bible.  The  "  drawing  "  is  justified  by  1  Kings 
ii.  28;  the  "hanging"  by  Esther  ii.  23.  The  "embowclling"  is 
sanctioned  by  the  circumstances  attending  the  ftite  of  Judas,  Acts  i-  18. 
For  the  extraction  of  the  criminars  heart,  he  finds  authority  in  2  Samuel 
xviii.  14,  15.  The  "beheading"  he  holds  justified  by  2  Samuel  xx.  22. 
And  he  cites  2  Samuel  iv.  11,  12,  as  authorizing  the  practice  of  hang- 
ing up  the  traitor's  disjointed  body  after  execution.  Psalm  cix.,  in 
his  opinion,  sanctions  the  law  of  corruption  of  blood  in  such  cases. 
3  Inst.  211. 


THE  LAW  REPORTERS.  185 

the  Attorney-General  of  the  day,  in  opposing  tliis 
liiimane  amendment,  asked,  'Are  the  safeguards,  the 
ancient  landmarks,  the  bulwarks,  of  the  Constitution 
to  be  thus  hastily  removed  ? '  Whicli  gave  occasion 
for  the  appropriate  exclamation  in  reply,  '  AVhat !  to 
throw  the  bowels  of  an  offender  into  his  face  one  of 
the  safeguards  of  the  British  Constitution  !  I  ought 
to  confess  tliat  until  this  night  I  was  wholly  ignorant 
of  this  bulwark.'  " 

?(\ 

IX  the  Case  of  Swans,^  it  is  held  that  cygnets  belong 
equally  to  the  owner  of  the  male  and  the  owner 
of  the  female  swan ;  and  this  is  the  reason  of  the  law  : 
"  Tlie  law  thereof  is  founded  on  a  reason  in  nature ; 
for  the  cock  swan  is  an  emblem  or  representation  of 
an  affectionate  and  true  husband  to  his  wife  above  all 
other  fowls,  —  for  the  cock  swan  holdeth  himself  to  one 
female  only,  and  for  this  cause  nature  has  conferred 
on  him  a  gift  beyond  all  others ;  that  is,  to  die  so 
joyfully  that  he  sings  sweetly  when  he  dies ;  upon 
which  the  poet  saith :  — 

Dulcia  defecta  modulatur  carmina  lingua 
Cantator,  cygnus,  funeris  ipse  sui  etc." 


LORD  LYXDHURST   was  in  his  early  days  a 
reporter.     His  name,  however,  appeared  only  on 
one  solitary  blue  cover  of  Taunton's  lieports. 

1  7  Rep.  15C. 


186  CURIOSITIES  OF 

"  "TF  Acts  of  Parliament  were,  after  the  old  fashion, 
-L  penned  by  such  only  as  knew  what  the  com- 
mon law  was  before  the  making  of  any  Act  of  Par- 
liament concerning  that  matter,  as  also  how  far  forth 
former  statutes  had  provided  remedies  for  former 
mischiefs  and  defects  discovered  by  experience ;  tlien 
should  very  few  questions  in  law  arise,  and  the 
learned  should  not  so  often  and  so  much  perplex  their 
heads  to  make  atonement  and  peace  by  construction 
of  law  between  insensible  and  disagreeing  words, 
sentences,  and  provisos  as  they  now  do.^" 


"TTT^ITH  reference  to  the  manner  in  which  the 
V  V  Year-Books  were  reported,  it  is  to  be  observed 
that  the  whole  cause,  as  well  the  special  pleadings  as 
the  debates  of  the  law  thereupon,  were  transacted  or 
alleged  at  the  bar ;  and  the  prothonotaries,  ex-officio, 
afterwards  made  up  the  records  in  Latin.  And  the 
court  oflcn  condescended  to  discourse  with  the  Serjeants 
about  the  discretion  of  their  pieas,  and  the  consequences, 
with  respect  to  their  clients.  And  the  court  did  all  tluy 
could  to  prevent  errors  and  oversights. 


C  O:\IPAEE  ElUott  V.  Stone,  12  Cush.  174,  with 
Elliott  V.  Stone,  1  Gray,  571. 

1  Preface  to  2  Rep.  pp.  ix,  x. 


THE  LAW  REPORTERS.  187 

ON  a  previous  page  ^  a  case  is  stated  from  Croke's 
Reports  in  the  time  of  Elizabeth.  In  Camden's 
"  Eemains,"  ^  the  sentence,  and  the  performance  of  it, 
is  given :  "  A  poor  man  found  a  priest  over-familiar 
with  his  wife,  and  because  he  spake  it  abroad,  and 
could  not  prove  it,  his  priest  sued  him  before  the 
Bishop's  Official  for  defamation,  where  the  poor  man, 
in  pain  of  cursing,  was  commanded,  that  in  the  parish 
church  he  should  upon  the  Sunday,  at  high  mass, 
stand  up  and  say,  '  Mouth,  thou  liest '  :  whereupon, 
for  fulfilling  of  his  penance,  up  was  the  poor  soul  set 
in  a  pew,  that  the  people  might  wonder  at  him  and 
hear  what  he  said;  and  there  all  aloud,  when  he 
had  rehearsed  what  he  had  reported  of  the  priest, 
then  he  set  his  hands  on  his  mouth,  and  said,  'Mouth, 
thou  liest ' :  and  by  and  by  thereupon,  he  set  his 
hands  upon  both  his  eyes,  and  said :  '  But  eyes,' 
quoth  he,  '  by  the  mass  ye  lie  not  a  whit/  " 


NELSON'S  LUTWYCHE.     We  give  two  speci- 
mens of  the  style  in  which  these  valuable  re- 
ports were  edited. 

"  This  is  only  a  hearsay  report,  which  the  Sergeant 
had  ex  relatione  of  his  brother  Girdler,  which,  for 
aught  I  know,  may  be  as  good  authority  as  Justice 
Warburton's  old  manuscript;  only  I  must  observe, 
that,  if  I  tell  a  long   and  impertinent   story  what 

1  Ante,  p.  12.  2  Page  304,  ed.  1870. 


188  CURIOSITIES  OF 

another  man  told  me,  it  will  not  be  allowed  as 
evidence  to  a  common  jury,  but  it  may  serve  to  pro- 
long tlie  time,  and  so  may  this  to  enlarge  the  book." 

"  The  Sergeant  tells  iis.  This  case  is  reported  by 
Sir  J.  Savile,  and  that  the  record  was  now  printed  to 
correct  a  mistake  in  that  report,  where  't  is  said  there 
were  two  disturbances  alleged  etc.  but  certainly  this 
could  not  be  any  reason  for  publishing  this  record, 
for  after  one  hundred  and  fifteen  years,  when  this 
case  happened,  it  cannot  be  material  to  inform  the 
world  that  there  was  but  one  disturbance  set  forth  in 
that  declaration ;  there  must  be  some  other  reason 
for  it,  and  probably  it  was  to  acquaint  the  reader  (to 
use  tlie  common  expression)  how  long  the  Lutwyches 
have  followed  the  law ;  for  I  found  John  Lutwyche 
was  attorney  on  the  record  for  the  defendants,  and  so 
he  was  in  9  Jac.  Winch's  Entries,  fol.  9." 


The  Lord  Sturton  and  Lord  Mordant. 

THEY  were  brought  to  the  bar  now,  being  held 
for  a  contempt  to  the  King  for  not  coming  to 
the  Parliament  by  prorogation  5th  November  when 
the  Gunpowder  Treason  was  intended.  And  it  was 
grandly  suspected  that  they  knew  of  the  plot,  because 
they  were  papists,  and  their  excuses  very  frivolous. 
And  Sturton  was  fined  to  six  thousand  marks,  and 
Mordant  to  one  thousand  marks.^ 

1  Noy,  102. 


THE  LAW  REPORTERS.  189 

IN  32  Eliz.  Piegin?e,  "  Jane "  was  agreed,  by  the 
Court  of  King's  Bench,  to  be  all  one  with  "  Joan." 

In  "  Lib.  Assis."  26,  fol.  7,  "  Julian  "  and  "  Gilian" 
are  made  two  distinct  names  ;  "  I  doubt  not  but  upon 
some  good  ground,"  says  Brooke. 

"  Some  will  have  the  name  '  Mabel  'to  be  a  con- 
traction of  the  Italians  from  JMabella,  that  is,  My 
fair  daughter,  or  maid.  But  whereas  it  is  written  in 
deeds  Amabilia  and  INIabilia,  I  think  it  cometh  from 
Amabilis,  that  is,  Loveable,  or  Lovely,  and  that  the 
names  are  the  same."  ^ 


THE  defendant  spoke  these  scandalous  words  of 
tlie  plaintiff:  "He  hath  got  M  N.  with  child." 
Motion  to  arrest  the  judgment  for  this  that  these 
words  are  not  actionable.  But  per  Glyn  Chief 
Justice :  The  words  are  actionable  because  it  does 
not  lie  in  the  mouth  of  the  defendant  to  say  that 
the  plaintiff  and  M.  N.  were  husband  and  wife.^ 


SHOWEPi,  after  reporting  a  long  argument  of  his 
own,  says,  "At  which  Dolbin  Justice  was  angry, 
and  said  no  man  would  have  made  such  a  motion  but 
myself,  and  wondered  that  I  should  have  made  such 
a  motion."  ^ 

1  2  Holl.  Ab.  135.  8  Clerk  v.  Andrews,  1  Sliowcr,  p.  12. 

2  2  Siderfin,  17. 


190  CURIOSITIES   OF 

"  "TXT'HEX  I  -svas  a  nisi  priiis  reporter,"  says  Lord 
V  V  Campbell,  "  I  had  a  drawer  marked  '  Bad 
Law '  into  v/liich  I  threw  all  the  cases  which  seemed 
to  me  improperly  ruled.  I  was  flattered  to  hear  Sir 
James  Mansfield  C.  J.  say, '  Whoever  reads  Campbell's 
Eeports  must  be  astonished  to  find  how  uniformly 
Lord  EUenborough's  decisions  were  right.'  i\Iy  re- 
jected cases,  which  I  had  kept  as  a  curiosity,  —  not 
maliciously,  —  were  all  burnt  in  the  great  fire  in  the 
Temple  when  I  was  Attorney-General."  ^ 


IX  October  1660,  Chief  Baron  Bridgman  presided  at 
the  trial  of  the  regicides.  AVe  find  handed  down 
to  ns  some  of  tlie  flowers  of  his  eloquence,  in  cliar- 
ging  the  grand  jury  on  tliis  occasion.  Having  ex- 
plained to  them  that  the  treason  consisted  ":n 
imarjininrj  and  compassing  tlie  King's  death,"  and 
stated  that  the  prisoners  had  gone  farther,  and  "exe- 
cuted liim  on  a  scaffold  in  front  of  his  own  palace," 
he  said :  "  Certainly  this  is  so  much  beyond  the  ima- 
gination and  compassing,  as  it  is  not  only  laying  the 
cockatrice's  egg,  but  brooding  upon  it  till  it  hath 
brought  forth  a  serpent."  After  stating  tliat  the 
crown  of  England  is  an  imperial  crown,  he  asks, 
"  What  is  an  imperial  crown  ?  It  is  that  which,  as  to 
the  coercive  part,  is  subject  to  no  man  under  God. 
The  King  of  Poland  has  a  crown ;  but  what  is  it  ? 

1  Lives  of  the  Chancellors,  Vol.  V.  p.  376  note,  5th  ed. 


THE  LAW  REPORTERS  191 

At  his  coronation  lie  is  conditioned  with  the  people, 
that  if  he  shall  not  govern  them  according  to  such 
and  such  rules,  they  shall  be  freed  from  their  homage 
and  allegiance ;  but  the  crown  of  England  is,  and 
ah\'ays  was,  an  imperial  crown,  —  not  subject  to  any 
human  tribunal  or  judicature  whatever.  As  to  the 
person  of  the  King,  he  is  not  to  be  touched.  Touch 
not  mine  anointed.  It  is  true  (blessed  be  God  I )  we 
have  as  great  liberties  as  any  people  have  in  Christen- 
dom, but  let  us  owe  them  where  tliey  are  due ;  we 
have  them  by  the  concession  of  our  Princes.  Our 
Princes  have  granted  them,  and  the  King  now  grants 
them."  Having  stirred  up  their  indignation  by  a 
rhetorical  description  of  the  King's  death,  he  thus 
concludes :  "  Xo  story  that  ever  was  —  I  do  not 
think  that  any  romance  —  any  fabulous  tragedy  — 
can  produce  the  like.  You  are'  now  to  inquire  of 
blood  —  of  royal  blood  —  of  sacred  blood  —  blood  like 
that  of  the  saints  under  the  altar,  crying,  Quousque, 
Domine.  This  blood  cries  for  vengeance ;  -and  it  will 
not  be  appeased  without  a  bloody  sacrifice.  He  that 
conceals  the  guilt  of  blood  takes  it  upon  himself,  — 
wilfully,  knowingly  takes  it  upon  himself;  and  we 
know  that  when  the  Jews  said.  Let  his  blood  be  on  us 
and  our  seed,  it  continued  and  continues  to  brina 
a  curse  unto  them  and  their  posterity  to  this  day."i 
We  sliould  think  it  rather  strange  if  a  judge  were 
to  tell  the  jury  that  a  capital  charge  was  so  clearly 

1  5  Howell  State  Trials,  989-99.4. 


192  CURIOSITIES  OF 

proved  that  they  ought  to  find  a  verdict  of  fjuiltjj 
without  leaving  their  seats;  but  even  fair  judges  were 
not  so  squeamish  in  those  days,  and  the  case  was  made 
out  in  law,  and,  in  fact,  beyond  all  possibility  of  doubt. 
He  checked  the  applause  which  burst  out  at  the  ver- 
dict, stating  that  it  was  more  fitting  for  a  stage  play 
than  a  court  of  justice.^ 


SWINBUENE  mentions  a  bequest  of  a  legacy  to 
a  person,  on  condition  of  his  drinking  up  all  the 
water  in  the  sea ;  and  it  was  held,  that,  as  this  con- 
dition could  not  be  performed,  it  was  void.^  The 
condition  to  go  to  Eome  in  a  day,  wOiich  Blackstonc 
meutions  in  his  Commentaries  as  void,  as  impossible 
to  be  performed,  may  be  good,  since  railroads  are  in- 
troduced on  the  Continent. 


AN  adulterer  takes  away  another  man's  wife, 
and  puts  her  in  new  clothes :  the  husband  may 
take  the  wife  with  her  clothes ;  for  it  is  as  it  were  a 
gift  of  the  said  apparel  unto  her.  Besides,  the  more 
worthy  thing  draws  to  it  things  of  less  worthiness.^ 
Quaere  which  is  the  more  worthy,  —  the  wife  or  the 
"  new  clothes  "  ? 

1  5  Howell  State  Trials,  1024, 1208.    Lord  Campbell  Lives  of  the  Chan- 
cellors, Vol.  IV.  pp.  142,  14-3,  5th  ed. 

2  Part  4,  sec  6,  art.  2. 
8  Fuieh's  Law,  22,  23. 


THE  LAW  REPORTERS.  193 

ALL  crimes  have  their  conception  in  a  corrupt 
iuteut,  and  have  their  consummation  and  issu- 
ing in  some  particular  fact ;  which  though  it  be  not 
the  fact  at  which  the  intention  of  tlie  malefactor 
levelled,  yet  the  law  giveth  him  no  advantage  of 
that  error  if  another  particular  ensue  of  as  high  a 
nature. 

Therefore  if  an  impoisoned  apple  be  laid  in  a  place 
to  poison  L  S.,  and  I.  D.  cometh  by  chance  and  eateth 
it,  this  is  murder  in  the  principal  that  is  actor ;  and 
yet  the  malice  in  individuo  was  not  against  I.  D. 

So  if  a  thief  find  the  door  open,  and  come  in  the 
night  and  rob  a  house,  and  be  taken  with  the  manner, 
and  break  a  door  to  escape,  this  is  burglary ;  yet  the 
breaking  of  the  door  was  without  any  felonious  in- 
tent ;  but  it  is  one  entire  act. 

So  if  a  caliver  be  discharged  with  a  murderous 
intent  at  I.  S.  and  the  piece  break  and  strike  into  the 
eye  of  him  that  dischargeth  it  and  killeth  him,  he  is 
felo  de  se  ;  and  yet  his  intention  was  not  to  hurt  him- 
self, for  felonia  de  se  and  murder  are  crimina  paris 
gradus.  For  if  a  man  persuade  another  to  kill  him- 
self, and  be  present  when  he  doth  so,  he  is  a  mur- 
derer. 

But  when  a  man  is  author  and  mover  to  another  to 
commit  an  unlawful  act,  then  he  shall  not  excuse  him- 
self by  circumstance  not  pursued. 

If  a  man  command  T.  S.  to  roT)  I.  D.  on  Sliootcrs 
Hill,  and  lie  dolh  it  on  Gads  Hill;  or  to  rol)  him  such 


194  CURIOSITIES  OF 

a  day,  and  he  doth  it  the  next  day ;  or  to  kill  I.  D. 
and  he  doth  it  not  himself  but  procureth  I.  B.  to  do  it ; 
or  to  kill  him  Ly  poison,  and  he  doth  it  by  violence ; 
—  in  all  these  cases,  notwithstanding  the  fact  be  not 
executed  in  circumstance,  yet  he  is  accessory  never- 
theless. 

But  if  it  be  to  kill  I.  S.  and  he  killeth  I.  I).,  mis- 
taking him  for  I.  S.,  then  the  acts  are  distinct  in  sub' 
stance,  and  he  is  not  accessory. 

And  be  it  that  the  acts  be  of  differing  degrees,  and 
yet  of  a  kind ;  as  if  a  man  bid  I.  S.  to  pilfer  away 
such  a  thing  out  of  a  house,  and  precisely  restrain 
him  to  do  it  some  time  when  he  is  gotten  in  without 
breaking  of  the  house,  and  yet  he  breaketh  the  house ; 
yet  he  is  accessory  to  the  burglary :  for  a  man  cannot 
condition  with  an  unlawful  act,  but  he  must  at  his 
peril  take  heed  how  he  putteth  himself  into  another 
man's  hands. 

But  if  a  man  bid  one  rob  I.  S.  as  he  goeth  to  Stur- 
bridge  Fair,  and  he  rob  him  in  his  house,  the  variance 
seemeth  to  be  of  substance,  and  he  is  not  accessory.^ 


BRACTOX,  describing  the  judges  of  his  time, 
speaks  the  language  likely  to  come  from  a  dis- 
appointed practitioner :  he  calls  them  "  Incipientes  et 
minus  docti,  qui  cathedram  judicandi  ascendunt  ante- 
quam  leges  dedicerint." 

1  Bacon  Maxims,  Eeg.  XV.,  XVI.,  citing  Plowden,  474,  475. 


THE  LAW  REPORTERS.  195 

IT  is  actionable  to  call  a  counsellor  "  a  daffodown- 
dilly,"  if  there  be  an  averment  tbat  the  words 
signify  an  ambidexter ;  ^  or  to  say  of  an  attorney, 
that  "  he  hath  no  more  law  than  Master  Cheyny's 
bull/'  e^'en  although  Master  Cheyny  actually  have 
no  bull ;  for  if  that  be  the  case,  as  Keeling  Chief 
Justice  observed,  "  the  scandal  is  the  greater."  ^  And 
it  is  quite  clear  that  to  say  that  a  lawyer  has  "no 
more  law  than  a  goose "  is  actionable ;  and  the  re- 
porter adds  a  quaere,  whether  it  be  not  actionable  to 
say  a  lawyer  "  hath  no  more  law  than  the  man  in  the 
moon  " !  ^ 


A  says  to  B,  "  One  of  us  is  perjured."  B.  says  to 
A,  "  It  is  not  I."  And  A.  says,  "  I  am  sure 
it  is  not  I."  B.  shall  have  an  action  for  these  words, 
for  the  subsequent  words  show  apparently  that  he 
intends  him.* 


SIE  JOHN  riXEUX,  some  time  Chief  Justice  of 
the  King's  Bench,  was  often  heard  to  say,  "  Wlio- 
so  taketli  from  a  justice  the  order  of  his  discretion, 
taketli  surely  from  him  more  than  half  his  ofdce."  ^ 

1  1  Roll.  Ab.  5.5.  pi.  17. 

2  1  Sitlerfiii,  327.     2  Keble,  202. 
8  1  Sideifiii,  424. 

*  Coe  ».  Clmmbers.  1  Roll.  Ab.  75. 

«  Camden's  "  Remains,"  p.  307,  ed.  1870. 


196  CURIOSITIES  OF 

CUNNINGHAM  writes  of  the  "many  reports 
which  have  been  published,"  that  "some  of 
them,  as  Justice  Slielley  said,  miglit  be  compared  to 
Banbury  cheeses,  whose  superfluities  being  pared 
away,  there  would  not  be  enough  left  to  bait  what 
Lord  Hale  called  '  the  mousetrap  of  the  law ' ;  yet 
probably  the  meanest  of  them  may,  like  the  little 
birds,  add  something  towards  building  the  eagle's 
nest."  1 


IN  the  perusal  of  a  very  solid  book  on  ecclesiastical 
law,  including  the  progress  of  the  ecclesiastical 
differences  in  Ireland,  written  by  a  native  of-  that 
country,  after  a  good  deal  of  tedious  and  vexatious 
matter,  the  reader's  complacency  is  restored  by  an 
artless  statement  how  an  eminent  person  "abandoned 
the  errors  of  tlie  Church  of  liome,  and  adopted  those 
of  the  Church  of  Enoland." 


"TDUT  particularly,"  says  Sheppard,  "if  an  idiot 
JL'  have  so  much  knowledge  that  he  can  read  or 
learn  to  read  by  instruction  and  information  of  others, 
or  can  measure  an  ell  of  cloth,  or  name  the  days  of  the 
week,  or  beget  a  child,  son  or  daugliter,  or  such  like, 
whereby  it  may  appear  that  he  has  some  light  of 
reason,  then  he  is  no  idiot  naturally."  ^ 

1  Cuiininsliam,  Preface,  p.  ix,  A.  D.  1766. 
^  Sheppard  Gr.  Ab.  tit.  Idiot. 


THE  LAW  REPORTERS.  197 

IT  is  established  that  a  subsequent  will  made  under 
the  impulse  of  a  mistaken  notion  of  a  fact,  and 
referring  to  the  fact  as  having  actually  happened,  and 
as  being  the  foundation  of  the  present  testamentary 
act,  will  not  revoke  a  former  will ;  ^  according  to  the 
case.  Pater  credens  filium  suum  esse  mortuum,  al- 
teram instituit  haeredem ;  filio  domi  redeunte,  hujus 
institutionis  vis  est  nuUa.^ 


IT  was  a  question  whether  a  rape  could  be  com- 
mitted on  the  body  of  a  child  of  the  age  of  six 
or  seven  years ;  and  a  person  being  indicted  for  the 
rape  of  a  girl  of  seven  years  old,  although  he  was 
found  guilty,  the  court  doubted  whether  a  child  of 
that  age  could  be  ravished ;  and  it  was  said,  if  she 
had  been  nine  years  old  she  might, /or  at  that  age  she 
may  he  endowed.^ 

MX 
AS. 

THE  only  judicial  opinion  of  Lord  Fortescue 
wliich  ever  made  a  deep  impression  on  the 
American  side  of  the  Atlantic  is  one  involving  the 
difficult  question  of  domicile,  and  is  thus  reported :  — 
"A  man's  bed  stood  so  that  he  lodged  in  two 
parishes  at  once.  The  question  was  where  his  settle- 
ment should  be.  ]\Ir.  Justice  Fortescue  said,  where 
his  head  lay ;  as  being  the  more  noble  part." 

1  Campbell  v.  French,  3  Ves.  321. 

2  Cicero  I)e  Oratore,  lib.  I.  ch.  38,  quoted  in  1  Saund.  280  d,  6th  ed. 
a  Dyer,  804. 


198  CURIOSITIES   OF 

BOYDELL'S  Illustrations  of  Shakespeare.  This 
Mork  was  the  subject  of  litigation  in  the  cele- 
brated case  of  Boydell  v.  Drummond.^  This  is  a 
leading  case  and  familiar  to  the  profession.  To  our 
non-professional  readers,  at  least  to  those  who  own 
the  volumes,  a  brief  statement  may  be  interesting. 
The  Statute  of  Frauds  enacts  that  no  action  shall 
be  brought  upon  "  any  agreement  that  is  not  to  be 
performed  within  the  space  of  one  year  from  the 
making  thereof,"  unless  there  is  some  note  or  memo- 
randum in  writing,  signed  by  the  party  to  be  charged. 
In  this  case  the  plaintiff  proposed  to  publish  a  mag- 
nificent edition  of  Shakespeare,  illustrated  by  seventy- 
two  engravings,  which  were  to  come  out  in  numbers, 
at  three  guineas  per  number,  two  of  which  were  to 
be  paid  for  in  ad\ance ;  each  number  was  to  contain 
four  engravings ;  "  one  number  at  least  was  to  he  jjuh- 
lishccl  annually,  and  the  proprietors  were  confident 
that  they  should  be  able  to  produce  two  numbers  in 
the  course  of  every  year."  These  proposals  were 
printed  in  a  prosjjeetus,  and  lay  in  the  plaintiff's  shop. 
The  plaintiff  also  kept  a  book,  which  had  for  its  title, 
"  Shakespeare  subscribers,  their  signatures"  ;  but  did 
not  refer  to  the  j^rospeetus.  The  defendant,  determin- 
ing to  become  a  subscriber  to  the  work,  signed  his 
name  in  tlie  book  containing  the  list  of  subscribers, 
but  afterwards  refused  to  take  it;  tliough  he  had 
received  and  paid  for  some  few  numbers,  this  action 

1  11  East,  142.  A.  D.  1809. 


THE  LAW  REPORTERS.  199 

was  brought  to  compel  him  to  complete  his  contract. 
The  court  decided  that  the  agreement  was  not  to  be 
performed  within  the  space  of  a  year  from  the  making 
thereof;  that  it  was  therefore  within  the  Statute. 


EOYAL  proclamations  were  guarded,  even  from 
imitation,  with  great  jealousy,  by  the  Star- 
Chamber.  In  the  twenty-second  year  of  the  reign  of 
Henry  VIII.,  a  knight,  happening  to  be  an  executor, 
caused  notice  to  be  published  in  several  towns,  that 
all.  persons  to  whom  his  testator  was  indebted,  com- 
ing to  him,  should  be  paid.  For  this  offence  he  was 
fined,  and  committed  to  the  Fleet. 


The  first  Aimepjcan  Law  Eeports. 

KIPtBY'S  EEPOETS  was  published  in  1789.1 
The  Preface  is  not  dated.  The  Preface  to 
Hopkinson's  Pieports  is  dated  February  1789.  The 
volume  is  scarce.  The  full  title  is  :  "  Judgements  in 
the  Admiralty  of  Pennsylvania,  in  Four  Suits  brought 
as  for  ^laritime  Hypotliecations.  Also,  the  Case  of 
Silas  Talbot  against  the  Brigs  Achilles,  Patty,  and  Hi- 
bernia,  and  of  the  Owners  of  the  liibernia  against  their 
Captain,  John  Angus.  With  an  Appendix  containing 
the  testimony  exhibited  in  tlie  Admiralty  in  tliose 
Causes.    The  lion.  Francis  Hopkinson,  Judge.    Phila- 

1  See  tlic  rrefiice  to  the  first  volume  of  Connecticut  Reports,  p.  xxviii. 


200  CURIOSITIES  OF 

delpliia :  Printed  by  T.  Dobson  and  T.  Lang  in  Second 
Street.     MDCCLXXXIX."     8vo.     pp.  131." 


IIST  Hale's  Pleas  of  the  Crown  it  is  laid  down  that 
the  corpus  delicti  must  be  expressly  proved  in 
criminal  cases.  In  a  recent  crown  case  reserved/  it 
was  argued,  on  the  authority  of  this  passage,  that  the 
corpus  delicti  must  be  proved  in  every  criminal  case, 
and  that  there  was  no  difference  in  the  application 
of  the  rule.  But  it  was  thus  answered  by  that 
acute  judge,  Mr.  Justice  Maule :  "  If  a  man  go  into 
the  London  Docks  sober  without  means  of  getting 
drunk,  and  comes  out  of  one  of  the  cellars  very 
drunk,  wherein  are  a  million  gallons  of  wine,  I  think 
tliat  would  be  reasonable  evidence  that  he  had  stolen 
some  of  the  wine  in  that  cellar,  though  you  could  not 
prove  that  any  wine  was  stolen  or  any  wine  was 
missed." 

'TTT'ILBUE  V.  HUBBAED.2  This  was  an  action 
V  V  brought  to  recover  damages  for  the  defend- 
ant's dog  killing  and  wounding  the  plaintiff's  sheep. 
By  tlie  court,  Balcom  P.  J. :  "  The  most  material 
question  in  this  case  is  whether  the  defendant's  dog 
was  one  of  the  two  tliat  wounded  and  killed  the 
plaintiff's  sheep.  The  sheep  were  wounded  and 
killed  in  the  niglit  of  the  8th  of  August  1860 ;  and 

1  Regina  v.  Burton,  Dearsly  C.  C  282.  2  35  Barb.  303. 


THE  LAW  REPORTERS.  201 

there  is  some  evidence  that  the  defendant's  dog  was 
not  at  home  that  night,  and  that  it  was  a  '  sheep-kill- 
ing dog.'  Some  of  the  witnesses  said  the  defendant's 
dog  had  a  '  very  coarse  voice '  ■  that  they  could  iden- 
tify it  by  its  bark,  and  heard  the  barking  of  a  dog 
in  the  lot  where  the  sheep  were  the  night  they  were 
wounded  and  killed,  which  they  thought  was  tliat  of 
the  defendant's  dog.  But  none  of  them  saw  the  dog 
that  night  in  such  lot.  I  think  it  possible  for  persons 
to  identify  a  dog  by  merely  hearing  it  bark,  without 
seeing  it.  Some  persons  have  such  peculiar  voices 
they  can  he  identified  by  acquaintances  who  hear 
them  talk,  M'ithout  seeing  them ;  and  it  seems  reason- 
able that  some  dogs  may  bark  in  such  a  manner  and 
have  such  singular  voices  that  they  can  be  identified 
in  the  night  time,  by  persons  who  know  them  well, 
by  merely  hearing  them  bark,  without  seeing  them." 


IIST  the  reign  of  Charles  II.,  Walcot  was  executed 
for  the  Rye  House  Plot;  and  twelve  years  after 
his  execution  a  writ  of  error  was  brought,  and  his 
attainder  reversed,  because  in  the  record  of  his  sen- 
tence it  had  not  been  stated  that  his  entrails  should 
be  Ijurnt  ivliilc  he  was  alive. 

A  prisoner  was  convicted  of  a  capital  felony  and 
was  sentenced  to  be  punished  by  transportation.  On 
error  the  judgment  was  reversed  because  lie  was  not 
sentenced  to  be  hanged,  and  he  was  discharged. 

9* 


202  CURIOSITIES   OF 

FENN",  who  was  a  brewer,  brouglit  an  action  against 
Dixe  for  saying  to  some  of  his  customers,  "  I 
will  give  my  mare  a  peck  of  malt  and  lead  her  to  the 
water,  and  let  her  drink,  and  she  shall  p — s  as  good 
beer  as  any  as  Tom  Fenn  brews."  Eolle  argued  that 
the  words  are  actionable ;  and  he  said  that  it  had 
been  adjudged  here,  that  if  one  say  of  a  brewer  that 
he  brews  naughty  beer,  without  more  saying,  these 
words  are  actionable,  without  any  special  damage 
alleged.  But  the  whole  court  was  against  him 
(Groke  only  absent)  that  the  words  of  themselves 
were  not  actionable,  without  any  special  damage 
alleged.  And  Berkeley  said  that  the  words  are  only 
comparative,  and  altogether  impossible  also.  And  he 
said  that  it  had  been  adjudged  that  where  one  says 
of  a  lawyer,  that  he  had  as  much  law  as  a  monkey, 
that  the  words  were  not  actionable,  because  he  hath 
as  much  law  and  more  also.  But  if  he  had  said  that 
he  hath  no  more  law  than  a  monkey,  those  words 
were  actionable.     And  it  w^as  adjourned.^ 


THE  first  misprision  of  treason  created  by  the 
Succession  Act  passed  in  the  reign  of  King 
Henry  VIII.  is  made  to  consist  in  words,  witliout 
writing,  or  exterior  act  or  deed,  whereby  anything 
is  published,  divulged,  or  uttered  to  the  peril  of  the 
King,  slander  or  prejudice  of  the  marriage  with  Anne 

1  ilarch,  pi.  93.    1  Roll.  Ab.  58.   Sir  W.  Jones,  444. 


THE  LAW  REPORTERS.     ■  203 

Boleyn,  or  the  slander  or  disinherison  of  the  royal 
issue.  The  clause  on  this  subject  affords  an  illustra- 
tion how,  by  judicial  interpretation,  a  minor  offence 
may  have  its  complexion  darkened. 

Two  monks  named  Hale  and  Feron  were  con- 
victed in  the  year  1535  of  treason,  on  account  of 
a  conversation  which  they  were  said  to  have  had 
together,  when  walking  "  to  and  fro."  The  indict- 
ment alleged  what  Hale  said  to  Feron.  Neverthe- 
less this  "  slander  of  the  King's  marriage  "  was  only 
in  loords,  and  these  were  not  made  treason  until  a 
statute  in  the  twenty-sixth  year  of  the  King.  In 
order  to  remove  this  difficulty,  it  was  alleged,  in  the 
indictment,  that  Hale  spolcc  the  words  with  a  view  of 
exciting  Feron  to  ■write  against  the  King,  who  sub- 
sequently wrote  down  in  Latin  the  words  wliich  Hale 
had  spoken  in  English.  Here  then,  it  was  construed, 
there  was  a  slander  of  the  King's  marriage  in  ivritinrj, 
and  that  'words  might  interpretatively  become  toi-it- 
ings,  although  in  a  different  language,  and  according 
to  another  man's  version. 

AT  one  time  tliere  were  at  the  bar  of  the  Court 
of  Chancery  particular  barristers  who  acquired 
reputation  by  their  cunning  in  drawing  bills.  One  of 
these  being  found  too  suhtle,  an  order  was  made  by 
Lord  Keeper  Egerton  that  no  bills  signed  by  him 
should  be  put  upon  the  file.^ 

1  Gary,  38. 


204  CURIOSITIES  OF 

A  CURIOUS  case  came  before  Lord  Chancellor 
King  showing  that  towards  the  middle  of  the 
last  century  the  custom  of  marrying  infants  of  tender 
years,  wdiich  had  formerly  been  very  common,  still 
prevailed  in  England.  One  of  several  guardians  to 
an  heiress  took  her  from  a  boarding-school  when  she 
was  only  nine  years  old,  and  married  Iter  to  his  own 
son,  who  liad  no  estate.  The  Lord  Cliancellor,  on 
motion,  ordered  this  guardian  to  brinsz  into  court  the 
infant  whom  he  had  married  to  his  son,  and  tliat  he, 
the  son,  and  the  infant  should  attend.  All  attending, 
the  counsel  for  the  application  pleaded,  "  that  this 
guardian  haA'ing,  in  so  perfidious  a  manner,  broken  liis 
trust,  and  married  his  ward  to  his  own  son,  who  w^as 
worth  nothing,  the  Court  of  Chancery,  the  guardian  of 
all  infants  with  the  superintendency  and  cognizance 
of  all  trusts,  ought  to  commit  liim,  and  not  suffer  the 
girl,  now^  but  nine  yeare  old,  to  continue  to  cohabit 
M'ith  lier  husband,  who  ought  not  to  be  indulged  with 
opportunities  of  inveigling  her,  and  preventing  her 
from  disagreeing  to  the  marriage  when  she  should 
come  to  the  age  of  twelve  years,  which  it  would  be 
for  licr  interest  to  do." 

Lord  Chancellor.  —  The  infant  girl  never  having 
been  under  the  care  of  the  court,  nor  committed  by 
the  court  to  the  care  of  this  guardian,  I  do  not  think 
he  can  be  considered  guilty  of  a  contempt  of  court ; 
but  then  it  is  a  very  ill  thing  in  him  to  marry  this 
child  to  Ids  own  son,  and  he  is  punishable  by  an  in- 


THE  LAW  REPORTERS.  205 

formation.  I  will  therefore  have  him  bound  over 
with  sureties  to  appear  to  answer  an  information  to 
be  filed  against  him  by  the  Attorney-General.  As  for 
the  child,  let  her  be  handed  over  Ijy  this  knavish 
guardian  to  the  other  guardian  named  in  her  father's 
will,  Mdio,  it  is  to  be  hoped,  will  take  proper  care  of 
her  and  do  what  is  for  her  advantage  in  advising  her 
to  confirm  or  to  renounce  the  marriaoe.  i 


IN  Eastell's  Entries,  26,  there  is  an  amusing  prece- 
dent of  a  declaration  in  an  action  on  the  case 
against  a  barber  for  shaving  the  beard  "  inartificially  "  : 
'E.  S.  nuper  de  N.  attach,  fuit  ad  respondendum 
H.  B.  de  placito,  quod  cum  idem  E.  ad  barbam  ipsius 
H.  bene  et  artificialiter  cum  novacula  munda  et  salu- 
bri  radere  apud  N.  assumpsisset,  predictus  E.  barbam 
ipsius  H.  cum  quadam  novacula  immundi  et  insalubri 
tam  negligenter  et  inartificialiter  rasit,  quod  facies 
ipsius  H.  morbosa  et  scabiosa  devenit  ad  damnum 
ipsius  H.  40s.  ut  dicitur." 


KELYXG  reports  a  case  in  which  the  question 
was,  whether  a  pardon  for  murder  could  be 
pleaded  to  a  conviction  for  manslaughter.  It  was 
ultimately  allowed. 

1  Goodall  V.  Harris,  2  P.  Wms.  C61. 


206  CURIOSITIES   OF 

SIR  SAMUEL  EOMILLY  designates  tlie  Act  of 
Elizabeth  concerning  Egyptians  as  "the  most 
barbarous  statute  that  ever  disgraced  our  Criminal 
Code."  It  was  enacted  that  "all  persons  above  the 
age  of  fourteen  years,  that  shall  be  found  in  the  com- 
pany of  vagabonds  commonly  called  or  calling  them- 
selves Egyptians,^  or  counterfeiting  or  disguising 
themselves,  by  their  apparel,  speech,  or  behaviour, 
like  them,  although  they  are  persons  born  vithin  tlie 
king's  dominions,  if  they  continue  one  month,  are 
felons  and  ousted  of  clergy."  Sir  Matthew  Hale's 
only  observation  upon  these  statutes  should  be  no- 
ticed: "I  have  not  known  these  statutes  much  put 
in  execution,  onlj/  about  twenty  years  since,  at  the 
Assizes  at  Bury,  about  tliirteen  were  condemned  and 
executed  for  this  offence."  ^ 


LOED  COKE  has  mentioned  what  he  calls  a 
"pattering  preamble  "  of  a  Statute  of  Heniy  YIT. 
every  statement  of  which  he  endeavors  to  show  was, 
to  use  his  expression,  ex  diametro  opposite  to  the 
enactments  which  it  was  made  to  preface.  Such  a 
preamble  may  be  thought  analogous  to  the  metaphor 
applied  by  Butler  to  Sir  Hndibras's  courtsliip,  of  the 
sculler  wlio  looks  one  way  and  rows  another. 

1  ....  "  That  haiulkerchicf 

Did  an  Kfjyptlan  to  my  mother  give." —  Othello 
«  1  Hale  P.  C.  670,  671. 


THE  LAW  REPORTERS.  207 

SAUNDEPtS  reports  this  case :  "  It  was  ruled  by- 
Hale  Chief  Justice,  ca^teris  tacentibus,  that  a 
certain  fault  in  a  declaration  was  only  matter  of  form 
and  not  matter  of  substance.  Yet  Saunders  for  the 
defendant  urged  that  there  were  twenty  books  to 
prove  it  to  be  a  matter  of  substance  ;  which  the  Chief 
Justice  confessed,  but  he  said  that  the  opinion  had 
been  otherwise  for  ten  years  past;  hut  I  believe  he 
meant  his  own  ojjinion."  ^ 


LOED  COKE,  in  his  Third  Institute,  observes  of 
tlie  Statutes  of  Apparel,  that  many  of  them 
"fight  with  and  cvff  one  another."  Lord  Herbert 
remarks  that  these  laws  for  the  government  of  fashion 
themselves  changed  fashion.  It  was  not  till  the  reign 
of  James  I.  that  Englishmen  obtained  liberty  of  ap- 
parel. 

w 

IF  a  carrier,  to  whom  a  package  of  goods  is  delivered 
to  take  to  a  certain  place,  open  the  package  and 
take  out  2'>ttTt  of  the  goods,  it  is  larceny ;  yet  it  is  not 
larceny  if  he  take  away  the  whole  package.^  Chief 
Justice  Kelyng  says,  "I  marvel  at  the  case  put  13 
Edw.  IV.  96,  that  if  a  carrier  have  a  tun  of  wine 
delivered   to  him  to  carry  to  sucli  a  place,  and  lie 

1  SIowc  V.  Wilmott,  2  Siiund.  402. 

2  Commonwealth  v.  Brown,  4  Mass.  580. 


208  CURIOSITIES   OF 

never  carry  it,  but  sell  it  all,  this  is  no  felony ;  but  if 
he  draw  part  of  it  out,  this  is  felony.  I  do  not  see 
why  the  disposing  of  the  whole  should  not  be  felony 
also."  ^  It  has  been  observed  that  this  construction 
"  savors  of  contradiction  "  and  "  stands  more  on  posi- 
tive law  than  sound  reasoning]:." 


Mes.  Peele's  Case.2 

THIS  was  a  suit  against  a  certain  Mrs.  Peele,  a  sort 
of  London  Madame  Le  Brun  of  that  day ;  the 
representative,  in  the  English  capital,  of  this  lady, 
whose  Parisian  name  and  fame  are  handed  down  to 
legal  immortality  in  one  of  the  great  Euglish  Peerage 
Cases,  and  who  has  left  the  bad  repute  of  "  la  veri- 
tahle  Maison  Le  Brun,"  as  Police  Pieports  of  1860  as- 
sure us,  to  at  least  three  hundred  and  twenty-eight 
houses  of  a  special  fame,  sometimes  called  an  ill  one, 
in  Paris,  at  this  day.  The  Viscountess  Purbecke,^  fa- 
mous for  her  beauty,  and  who  so  abused  the  dangerous 
-gift  as  to  become  the  scandal  of  St.  James's  Court, 
was  at  this  time  the  occupant  of  Somerset  House,  then 
as  now  a  princely  establishment  built  originally  by  the 

1  Kelyng,  83. 

2  Littleton,  150,  242. 

8  Iler  name  was  Frances  Coke,  and  she  was  a  dangliter  of  Sir 
Edward  of  that  name.  Her  mother  was  Lady  Hatton  —  a  Cecil  — 
known  in  general  history  as  a  sister  of  Sir  Thomas  Burleifrh,  Earl  of 
Essex,  but  better  known  to  lawyers  as  the  uncomfortable  and  imperious 
wife  of  the  great  Chief  .lustice,  whose  very  name  she  refused  to  take, 
and  whose  life  she  tormented  by  every  indignity  that  it  was  possible  for 
a  woman  to  offer  to  a  husband. 


THE  LAW  REPORTERS.  209 

Protector  Somerset,  long  the  abode  of  Queen  Elizabeth, 
and,  at  the  time  we  speak  of,  the  resort  of  all  that 
was  "  emancipated  "  in  the  world  of  courtly  fashion. 
Like  most  beautiful  women,  however,  while  bringing 
troops  of  lovers  daily  to  her  feet,  the  Countess  was 
herself  the  slave  of  one.  This  favored  person  was 
Sir  Ptobert  Howard,  a  younger  son  of  the  noble 
family  of  Suffolk.  And,  not  too  much  to  shock  the 
hiensecmccs,  an  arrangement  was  contrived  to  give  the 
accepted  lover  what  in  France  is  known  as  Ics  jjctitcs 
entrees,  Avhile  the  respectable  world  at  large  —  includ- 
ing the  lady's  very  virtuous,  and,  no  doubt,  very 
hopeful  admirers  —  should  enjoy  in  greater  state  and 
ddgmij  Ics  grandcs.  Tlie  virtuous  Mrs.  Peele  was  the 
common  friend  of  Sir  Eobert  and  the  lady ;  and,  rent- 
ing a  handsome  mansion  next  door  to  Somerset 
House,  "  a  private  passage,"  the  reporter  Littleton 
tells  us,  had  been  made  between  the  two;  so  that, 
entering  ]\Irs.  Peele's  street  door,  Sir  Eobert  could  find 
hhnself,  without  either  scandal  or  difficulty,  in  tlie 
dressing-room  of  Lady  Purbecke  —  and  along  with 
its  less  innocent  attractions  disclosing  through  the 
open  lace-work  of  its  half-drawn  curtains  and  in  its 
southern  views  the  tlien  sedgy  banks  of  the  Thames, 
the  still  lovely  lawns  of  Lambetli,  tlie  ever-beauteous 
spires  of  Westminster,  and  the  .slope  —  in  those  days 
so  graceful  —  of  the  Surrey  Hills  !  Quid  non  vincit 
amor  ?  How  successfully  it  was  all  achieved  !  How 
delightfully  they  passed  their  time !     Sui)])iiig  and 


210  CURIOSITIES   OF 

sinning  so  decorously,  in  all  tlie  charms  of  "love's 
beginning."  But  alas  !  the  aliquid  auiari  that  springs 
up  even  in  the  fountain  of  our  innocent  delights ! 
These  very  happy  parties  Avere  not  allowed  to  remain 
undisturbed  ;  and  notwithstanding  the  praiseworthy 
efforts  they  had  made  to  avoid  offending  the  over- 
good,  ]\Irs.  Peele  was  brought  before  tlie  High  Com- 
missioners upon  the  discreditable  charge  of  being 
"guilty  of  aiding,  causing,  and  procuniuj  adultery 
between  the  parties  "  ;  and,  as  it  appears,  from  Little- 
ton's report,  found  Guilty,  and  Imprisoned. 


THERE  is  one  instance  in  the  reign  of  Elizabeth 
of  a  criminal  jurisdiction  being  directly  assumed 
by  the  Court  of  Chancery  on  a  bill  filed  to  punish 
a  party  for  corrupt  perjury,  where  there  v.-as  not  suffi- 
cient evidence  to  convict  him  at  common  law.  He 
demurred,  but  was  compelled  to  answer.^ 


T REMAIN'S  CASE.  Being  an  infant  he  went  to 
Oxford,  contrary  to  tlie  orders  of  his  guardian, 
who  would  have  him  go  to  Cambridge.  And  the 
court  sent  a  messenger  to  carry  him  from  Oxford  to 
Cambridge.  And  upon  his  returning  to  Oxford  there 
Avent  another,  tarn  to  carry  him  to  Cambridge,  quam 
to  keep  him  there.^ 

1  Gary,  90.  '^  1  Strange,  167. 


THE  LAW  REPORTERS.  211 

LORD  COKE  in  the  Third  Institute  relates  that 
many  and  conimon  women  had  seated  them- 
selves in  a  lane,  next  to  the  house  of  the  friars  Car- 
melites in  Fleet  Street :  this  being  an  open  and 
known  wickedness,  King  Edward  III.,  to  the  end 
that  these  friars  might  perform  their  vows,  one  of 
which  was  to  live  in  perpetual  chastity,  took  order 
for  the  removing  of  these  womeu.^ 


THE  following  is  the  entire  judgment  of  Mr. 
Justice  Best  in  an  important  case  :  "  If  we  were 
to  grant  tliis  rule,  we  should  make  ourselves  auditors 
to  all  the  trading  corporations  in  England."  ^ 


/^miEF  JUSTICE  KELYNG  was  nnspeakably 
V_y  proud  of  the  collar  which  he  wore  as  Chief 
Justice,  this  alone  distinguishing  him  externally  from 
the  puisnies,  a  class  on  whom  he  looked  very  haugh- 
tily. In  his  own  report  of  the  resolutions  of  the 
judges  prior  to  the  trial  of  Lord  Morley  for  murder, 
before  the  House  of  Lords,  he  considers  the  followinff 
as  the  most  important :  "  We  did  all,  una  voce,  resolve 
that  we  were  to  attend  at  the  trial  in  our  scarlet 
robes,  and  the  Chief  Judges  in  tlieir  collars  of  S.  S., — 

1  3  Inst.  20.5. 

«  Tlin    Kint;  v.   Bank   of  Kn^land,  2   ]}.  &   .\M.   p.  623.     Quoted  in 
American  Kuilway  Frog  Co.  v.  Ilavcn,  101  Mass.  p.  407, 


212    CURIOSITIES  OF  THE  LAW  REPORTERS. 

which  I  did  accordingly."  ^     His  volume  of  decisions 
ill  criminal  cases  abounds  with  silly  egotisms. 


WE  will  conclude  tins  volume  with  a  single  line 
from  Lord  Bacon  :  — 
"Eather  to  excite  your  judgment  briefly  than  to 
inform  it  tediously."  ^ 

1  Kelyng,  53,  54.     6  Howell  State  Trial?,  769. 

8  Articles  of  Union  between  England  and  Scotland. 


THE     END 


ODDITIES  OF  THE  LAW 


BY 


FRANKLIN   FISKE   HEARD 


SAN  ?^RANCISCO 
SIBINER  WHITNEY  &  CO. 

1885 


Entered  according  lo  the  Act  of  Congress,  In  the  year  1881, 

By  FUANKIJX  FISKK  IIEAUl), 
In  tlie  Oflice  of  Ibe  Libnuhiu  of  Congress,  at  ^Vasllington. 


"Several  hints  wliicli  may  be  serviceable  unto  you,  and 
not  ungrateful  unto  others,  I  present  you  in  this  liook:  Ih.  y 
are  not  trite  or  vulgar.  I  set  them  not  clown  in  order,  1  nt 
as  memory,  fancy,  or  occasional  observation  produced  them; 
whereof  you  may  take  the  pains  to  single  out  such  as  sliall 
conduce  unto  your  purpose." 

Sir  Thomas  Browne. 


Sunt  bona,  sunt  qu^dam  mediocria,  sunt  mala  plura 
Quae  legis  hie:  aliter  nou  fit,  Avite,  liber. 

Mabtial. 


ODDITIES  OF  THE  LAW. 


N  the  year  1598  Sir  Edward  Coke,  then 

Attorney    General,  married    the    Lady 

Hatton,  according  to  the  Book  of  Com- 

^t^"^-^l|  mon  Prayer,  but  without  banns  or  li- 


cense, and  in  a  private  house.  Several 
great  men  Avere  there  present,  as  Lord  Burleigh, 
Lord  Chancellor  Egerton,  etc.  They  all,  by  their 
proctor,  submitted  to  the  censure  of  the  arch- 
bishop, wlio  granted  them  an  absolution  from  the 
excommunication  which  they  had  incurred.  The 
act  of  absolution  set  forth  that  it  was  granted  by 
reason  of  penitence,  and  the  act  seeminj  to  have 
been  done  tlirough  ignorance  of  the  latv.^ 


ACCORDING  to  Clayton,  p.  158,  the  design 
of  a  bill  of   exceptions  "is  to  prevent  the 
precipitancy  of  the  judge." 

1  Middlcton  v.  Croft,  Cuuiiiiigham,  103,  3d  ed. 


2  ODDITIES   OF   THE  LAW. 

GODBOLT,  p.    34,   reports   a    case    in    Avliieli 
Chief  Justice  Belknap  lays  down  a  certain 
proposition  which  "  he  swore  to  be  law."' 


IN  :Mosby  V.  Leeds,  3  Call,  439,  "  Leeds  filed  a 
bill  in  chancery,  stating  that  Clark,  being* 
indebted  to  him,  absconded,  and  the  plaintiff  took 
out  an  attachment  against  his  effects,  which  was 
levied  by  ^Nlosb}',  the  sergeant  of  the  city  of  Rich- 
mond, on  a  female  slave  and  some  other  articles ; 
that  jNLarshall  or  Anderson,  having  a  claim  against 
Clark  for  house-rent,  directed  tlie  sergeant  on  the 
succeeding  day  to  distrain,  who  nppcars  to  have 
levied  it  on  the  balance  of  the  negro  wliich  should 
remain  after  satisfying  the  plaintilf." 


MR.  JUSTICE  MAULE  once  said  that  nomi- 
nal  damages  ''  are  in  effect   only  a  ijeij  to 
hang  costs  on."'  ^ 

"TN  order  to  obtain  an  equitable  verdict  in  an 
-*-  action  of  adultery,"'  writes  Voltaire,  "  the  jury 
should  be  composed  of  twelve  men  and  twelve 
women,  with  an  hermaphrodite  to  give  the  casting- 
vote  in  the  event  of  necessity." 

i  Beaumont  v.  Greathead,  2  D.  &  L.  635,  636. 


ODDITIES    OF  THE  LAW.  3 

IN  the  Third  Institute,  cap.  I.,  is  this  maxim, 
Injuria  ilhita  judici  sen  locum  tenenti  regis 
videtur  ipsi  regi  iUata,  maxmie  si  fiat,  in  exercente 
officium. 

Shakespeare,  in  the  following  passage  from  the 
Second  Part  of  Henry  IV.  refers  to  this  maxim, 
or  to  the  law  which  it  describes :  — 

Chief  Justice.     I  then  did  use  the  person  of  your  father; 
The  image  of  his  power  lay  then  in  me  • 
And,  in  the  administration  of  his  law- 
Whiles  I  was  busy  for  the  commonwealth, 
Your  Highness  pleased  to  forget  my  place, 
The  majesty  and  power  of  law  and  justice. 
The  image  of  the  king  whom  I  presented, 
And  struck  me  in  my  very  seat  of  judgment 
Whereon,  as  an  offender  to  your  father, 
I  gave  bold  way  to  my  authority, 

And  did  commit  you. 

Act  v.  sc.  2. 

In  a  very  recent  case  in  the  House  of  Lords, 
Lord  Selborne,  in  the  course  of  the  argument  as 
to  notice,  referred  to  the  case  of  Chief  Justice 
Gascoigne,  who  without  a  moment's  hesitation, 
and  without  any  prior  notification,  sent  the  Prince 
of  Wales  instantly  to  the  Fleet  Prison  for  a  con- 
tempt of  court  committed  in  pra3sentia;  the  heir 
of  the  crown  submitting  patiently  to  the  sentence, 
and  making  reparation  for  his  error  by  acknowl- 
edging it.^ 

1  "Walt  V.  Ligertwood,  L.  K.  2  H.  L.,  Scotch  Appeals,  3(J7  note, 
A.  D.  1874. 


4  ODDITIES   OF  THE  LAW. 

FOR  their  private  reading  our  readers  are  re- 
ferred to  the  case  of  Smith  v.  Tebbitt,  L.  R. 
1  P.  «fe  D.  at  pp.  405,  406. 


IN  Price  v.  Sears,  2  Lowell,  553,  a  claim  of 
salvage  for  a  boat  on  which  the  plaintiff  es- 
caped from  a  ship  lost  in  mid-ocean  is  rather 
drj'ly  disposed  of :  "As  the  boat  appears  to  have 
saved  him  quite  as  much  as  he  the  boat,  that 
account  is  in  equilibrio." 


"  rr^HE   case   in   Salkeld   does   not   come  very 
-■-    strongl}-  recommended.     For  first,  it  is  an 
anonymous    case ;  and  next,  what  is  relied  upon 
as  there  said  was  beside  the  point  in  judgment."  ^ 


SIR  HARBOTTLE  GRLMSTOX  wrote  in 
true  professional  language  of  his  father-in- 
law,  Sir  George  Croke,  that  he  was  continued 
one  of  the  judges  of  the  King's  Bench  "  till  a 
certiorari  came  from  the  great  Judge  of  heaven 
and  earth  to  remove  him  from  a  human  bench 
of  law  to  a  heavenly  throne  of  glory."  ^ 

1  Per  Lord  Kenyon,   C.  J.,  iu  Taylor  v.  Eastwood,  1  East, 
216. 

3  Cro.  Eliz.,  Epistle  Dedicatory. 


ODDITIES    OF   THE  LAW 


"  "'V/^OU   have   made   a   long   entry  to  a   little 

— L     house,"  said  Lord  Keeper  Egerton  to  Mr. 

Higgins,  who  used  a   long  preface  to  a  cause  of 

little  worth,  and  might  have  been  sooner  answered.^ 


IN  a  recent  volume  of  "  Reports  of  Cases  Argued 
and  Determined  in  the  Court  of  Appeals  of 
the  State  of  New  York,"  is  this  marginal  note, 
and  this  only  :  "  Judgment  affirmed  of  course."  ^ 


IN  an  action  for  scandalous  words  spoken  of  a 
justice  of  the  peace,  the  Court  observed  : 
"  There  is  not  much  difficulty  in  this  case  ;  but 
there  is  no  end  of  citing  and  answering  cases. 
The  plaintiff  here  is  said  to  be  a  justice,  yet  no 
special  damage  laid  in  the  case :  the  office  of 
justice  of  the  peace  is  not  so  considerable  but  that 
many  people  choose  to  decline  it."  ^ 


IT  is  said  in  jNIarch  on  Arbitraments,  215,  that 
a  non-suit  "  is  but  like  the  blowing-out  of  a 
candle,  wliich  a  man,  at  his  own  pleasure,  lights 
again."  * 

1  Notes  and  Queries,  4tli  ser.  vol.  VII.  p.  5. 

2  Lyman  v.  Willicr,  ."  Keyes,  427. 

8  Palmer  v.  Edwards,  Cooke,  24'2,  .3d  ed. 

*  Quoted  by  Metcalf,  J.,  in  Clapp  v.  Thomas,  5  Allen,  159. 


6  ODDITIES   OF  THE  LAW. 

IN  a  recent  case  Chief  Justice  Chapman  ob- 
served that  "  Experience  is  not  sufficiently 
uniform  to  raise  a  presumption  that  one  who  has 
the  means  of  paying  a  debt  will  actually  pay 
it."  1 

MR.  JUSTICE  WAYNE,  having  occasion  to 
refer  to  the  second  volume  of  Gray,  cited 
it  as  follows  :  "  the  2d  of  Horace  Gray's  Reports 
of  the  Supreme  Judicial  Federal  Court  of  Massa- 
chusetts." 2 


"  rr^IIE  parents  of  trusts  were /rrt?/(f  and  fear, 
-■-    and  a  court  of  conscience  was  tlie  nurse."'  ^ 


SAUNDERS  thus  concludes  the  report  of  the 
case  of  Windsor  v.  Gover,  2  Saund.  S05  c: 
"For  tliis  fault  alone  judgment  was  given  against 
the  defendant  by  Twisden,  Raynsford,  and  JNIor- 
ton,  Justices,  Kelynge,  Chief  Justice,  being  absent, 
who  said  that  the  plea  in  this  point  was  altogether 
insensible.  But  I  believe  their  principal  reason 
was  because  they  u'ould  not  determine  the  matter  of 
latv.'^ 

1  Atwood  V.  Scott,  90  Mass.  178. 

2  Dynes  v.  Hoover,  20  How.  81. 

8  Attorney  General  v.  Sands,  Hard.  491,  quoted  in  1  Perry  on 
Trusts,  §  o  note. 


ODDITIES   OF  TUB  LAW.  7 

SIR  FRANCIS  PALGRAVE  relates  this  an- 
ecdote :  Within  memory,  at  the  trial  of  a 
cause  at  Merioneth,  when  the  ]nvy  were  asked  to 
give  their  verdict,  the  foreman  answered,  "  My 
lord,  we  do  not  know  who  is  plaintiff,  or  who  is 
defendant ;  but  we  find  for  whoever  is  Mr.  C.  D.'s 
man."  Mr.  C.  D.  had  been  the  successful  candi- 
date at  a  recent  election,  and  the  jury  belonged  to 
his  color.i 


LORD  ELDON  mentions  a  remarkable  instance 
as  regarded  himself,  of  the  uncertainty  of 
evidence  as  to  handwriting.  A  deed  was  pro- 
duced at  a  trial,  on  which  much  doubt  was  thrown 
as  a  discreditable  transaction.  The  solicitor  was 
a  very  respectable  man,  and  was  confident  in  the 
character  of  his  attesting  witnesses.  One  of  them 
purported  to  be  by  Lord  Eldon  himself;  and  the 
solicitor,  who  had  referred  to  liis  signature  to 
pleadings,  had  no  doubt  of  its  authenticity,  yet 
Lord  Eldon  had  never  attested  a  deed  in  his  life.^ 


LORD  COKE  says  that   Moses  was  the  first 
reporter  of  law.^ 

1  Aiithority  of  the  King's  Counfil,  p.  143. 

2  Eaglcton  v.  Kingston,  8  Yes.  473.  Quoted  liy  Mr.  Justice 
Coleridge  in  liis  judgment  iu  Doc  v,  Suckermore,  5  A.  &  E.  71G, 
and  2  N  &  P.  ^^A. 

8  G  Hep.  Pref.  j),  xv. 


8  ODDITIES   OF  THE  LAW. 

JUDGMENT  was  given  against  the  defendant 
of  about  forty  years  of  age,  upon  wljich 
judgment  he  brought  a  writ  of  error,  and  assigned 
infancy,  and,  appearing  by  attorney  for  error,  the 
Court  fined  tlie  attorney.^ 


IN  the  Preface  to  the  Eighth  Part  of  his  Reports 
Lord  Coke  says :  "  There  are  certain  other  cases 
now  published  by  me,  concerning  some  of  the  most 
abstruse,  dark,  and  difficult  points  in  the  law,  and 
yet  very  necessary  to  be  known.  And  I  have  of 
purpose  done  these  as  plainly  and  clearly,  and 
therewith  as  briefly,  as  I  could.  For  the  laws  are 
not  like  to  those  things  of  nature  which  shine 
much  brighter  througli  crystal  or  amber  than  if 
they  be  beheld  naked  ;  nor  like  to  pictures,  that 
ever  delight  most  when  they  are  garnished  and 
adorned  with  fresh  and  lively  colors,  and  are  much 
set  out  and  graced  by  artificial  shadows." 


THE  following  is  one  of  the  head-notes  to  the 
case  of  Abbe  v.  Pvood,  6  McLean,  107 :  "  A 
witness  who  swears  that  a  certain  thing  was  said 
or  done  is  entitled  to  greater  weight  than  a  wit- 
ness who  said  that  he  did  not  hear  the  remark,  or 
witness  the  act." 

1  Per  Holt,  C.  J.,  in  Pierce  v.  Blake,  2  Salk.  515,  516. 


ODDITIES   OF  THE  LAW.  9 

THE  Public  Local  Laws  of  Maryland,  vol.  2, 
p.  315,  contains  the  Police  Act  of  the  City 
of  Baltimore,  passed  in  1860.  This  provides  tliat 
"  No  Black  Republican,  or  indorser  or  approver  of 
the  Helper  Book,"  shall  be  appointed  to  any  office 
under  the  Board  of  Police.  The  constitutionality 
of  this  act  came  before  the  court  in  Baltimore  v. 
State,  15  Md.  376,  468.  The  above  clause  was 
objected  to  as  unconstitutional ;  but  the  Court  held 
that  they  could  not  take  judicial  cognizance  of  the 
meaning  of  these  words. 


"XT  is  wonderful  how  slowly  the  most  obvious 
-*-  truths  are  perceived  and  admitted.  The  plain 
and  simple  morality  of  the  gospel  required  a  reve- 
lation. Even  in  my  da}"  at  the  bar  it  was  the 
constant  practice  of  the  Orphans'  Courts  to  allow 
a  charge,  in  administration  accounts,  for  the  price 
of  strong  drink  furnished  avowedl}'  to  stimulate 
the  bidders  at  the  sale  of  the  decedent's  effects."  ^ 


ON  the  titlepage  of  Clayton's  Reports  is  this 
motto  :  "  Open  thy  mouth  for  tlie  dumb.  .  .  . 
Plead  the  cause  of  the  poor  and  needy."  —  Pnov. 
xxxi.  8,  9. 

1  Per  Gibson,  C.  J.,  iu  Peuaock's  Appeal,  14  Penu  State,  450, 
A.D.  1850, 


10  ODDITIES   OF  THE  LAW. 

IF  the  hiisbaiul  will  not  supply  liis  wife  with 
necessaries,  she  must  make  her  complaint  to 
the  ordinary,  and  he  may  supply  a  remed}- ;  and 
that  this  is  the  proper  course,  and  best  adai)ted  to 
such  a  complaint,  is  manifest.  Because  the  bishop 
himself  ought  to  examine  the  matter  in  private ; 
and,  if  he  finds  all  persuasion  to  a  reconciliation 
useless,  he  must  proceed  to  sentence,  and  this  will 
be  according  to  the  demerit  of  the  wife,  and  not 
according  to  the  estate  and  degree  of  her  husband, 
as  a  jury  must  proceed,  which  would  be  a  pernicious 
precedent,  since  bad  women  would  have  as  great 
provision  as  good  women,  when  the  default  is  on 
the  part  of  the  husband.  But,  in  the  spiritual 
court,  such  bad  women  as  have  violated  their  vows 
shall  have  such  provision  as  clerks  convict  (Staraf. 
140),  and  shall  he  fed  ivith  the  bread  of  affliction 
and  the  water  of  adversity} 


"TTTHEN  sitting  in  the  Rolls  Court,  indignant 
»  '  at  the  conduct  of  one  of  the  parties, 
Lord  Kenyon  astonished  his  staid  and  prosaical 
audience  by  exclaiming,  "  This  is  the  last  hair  in 
the  tail  of  procrastination  I "'  Whether  he  plucked 
it  out  or  not,  observes  Mr.  Townsend,  the  reporter 
has  omitted  to  inform  us.^ 

1  Manliy  v.  Scott,  2  Smith  L.  C.  457,  458,  7th  Loudon  ed. 

2  Lives  of  Eminent  Judges,  vol.  1,  p.  79. 


ODDITIES   OF  TUE  LAW.  11 

A  STATUTE  of  New  York  provides,  that  if  an 
officer  in  a  corporation  refused,  on  request 
of  a  stockholder,  "  to  exhibit  the  books,  or  to  sub- 
mit them  to  an  examination,"  he  shoukl  forfeit  a 
certain  sum.  The  defendant  contended  that  the 
stockhokler  coukl  not  take  off  a  list  of  stock- 
holders. "  It  was  supposed,"  said  the  Court,  "  that 
the  etymological  meaning  of  the  words  '  exhibit ' 
and  '  examine '  limited  their  meaning  to  the  con- 
struction contended  for  by  the  defendant.  If  the 
derivation  be  from  examen,  a  swarm  of  bees,  it 
may  be  supposed  to  imply  the  industry  and  per- 
severance of  the  bee,  and  would  then  authorize  a 
search  as  thorough  as  the  most  earnest  could 
desire ;  and  not  only  a  search,  but  that  the  best 
part  of  that  which  is  searched  should  be  also 
carried  off  to  be  converted  to  a  good  and  useful 

purpose."  ^ 

-  » ■ « — 

IT  was  argued  in  a  case  in  the  House  of  Lords, 
that  the  word  "but"  is  not  necessarily  in 
opposition  to  what  precedes  it.  It  is  a  conjunction 
as  well  as  a  preposition.  In  one  case  it  is  derived 
from  "be  out,"  and  is  equivalent  to  "except,"  or 
"  without."  Per  Lord  13rougham :  "  x\s  in  the 
motto  of  the  Macphersons,  '  Touch  not  a  cat  but 
[without]  a  glove.'  "^ 

1  Biouwer  v.  Cotlical,  10  Barb.  21G. 

2  Abbott  V.  Middletou,  7  Uouse  of  Lords  Cases,  75,  76. 


12  ODDITIES   OF  THE  LAW. 

LORD  CAMPBELL  relates,  that  upon  Bun 
yan's  wife  seelviiig  redress  from  the  Judges 
of  Assize,  who  Avere  the  furious  Twisden  and  Hale, 
the  former,  according  to  Bunyan's  own  account, 
"  snapt  her  up."  But  Hale  said,  "  Alas,  poor 
woman  !  "  and  added,  "  There  is  no  course  for  you 
but  to  apply  to  the  king  for  a  pardon,  or  to  sue 
out  a  u'rit  of  error;  and,  the  indictment  or  sub- 
sequent proceedings  being  shown  to  be  contrary 
to  law,  the  sentence  shall  be  reversed,  and  your 
husband  shall  be  set  at  liberty,"  —  a  piece  of  in- 
formation little  calculated  to  have  extricated  the 
tinker  Bunyan  from  the  "Slough  of  Despond."-^ 


THE  late  Lord  Justice  James  remarked,  in  a 
very  recent  case  in  the  Court  of  A])peal,  that 
the  Court  could  not  be  too  strict  in  taking  care 
that  the  pleadings  should  not  degenerate  into  the 
oppressive  character  of  some  of  the  pleadings  in 
the  old  Court  of  Chancery.  "  We  must  not," 
added  his  lordship,  "  be  driven  to  confess,  as 
Oliver  Cromwell  did  with  a  sigli,  in  reference  to 
his  ineifectual  attempt  to  reform  the  law  and  pro- 
cedure of  this  country,  that  the  sons  of  Zeruiah 
are  too  hard  for  us.  For  my  own  part,  I  do  not 
mean  to  succumb  to  their  devices."  ^ 

1  Lives  of  the  Clnef  Justices,  II.  212  and  note,  3d  ed. 

2  Davy  V.  Garrett,  38  L.  T.  N.  S.  81,  A.D.  1878. 


ODDITIES   OF  TUE  LAW.  13 

IN  Brocket  v.  Ohio  Railroad  Company,  14  Penn. 
State,  244,  245,  where  the  question  was 
whether  a  railroad,  under  an  authority  to  take  land, 
could  move  a  house,  Gibson,  C.  J.,  said :  "  It  is 
indispensable  to  safety  and  speed  that  the  route 
of  the  railroad  be  as  direct  as  the  surface  of  the 
countr}'  will  permit,  but  they  could  not  be  at- 
tained in  a  settled  country  if  every  hovel  or  house 
w^ere  privileged ;  and  thus  a  quasi  national  work 
intended  for  posterity  might  be  botched  through 
a  respect  for  the  sacredness  of  temporary  erections. 
The  course  of  a  railroad  might  be  insuperably 
obstructed  by  the  obstinacy  of  a  proprietor  in 
the  gorge  of  a  mountain,  or  the  pass  be  made,  at 
least,  difficult  and  dangerous.  A  mangled  passen- 
ger inquiring  the  reason  of  a  deflection,  when  the 
cause  of  it  had  disappeared,  might  be  told  of  our 
infinite  respect  for  property  at  the  expense  of 
safety ;  but  the  information  would  neither  ease 
his  pain,  nor  set  his  leg." 


"  nnilE  report  of  the  case  of  Swift  v.  Stevens, 
-L  8  Conn.  439,  concludes  as  follows :  "  Peters, 
J.,  having  received,  during  the  argument  of  tliis 
case,  intelligence  of  the  deatli  of  his  son,  Hugh 
Peters,.  Esq.,  of  Cincinnati,  left  the  court-house, — 
multa  gemens,  casuque  aninium  concurrus,  —  and 
gave  no  opinion." 


14  ODDITIES    OF   THE  LAW. 

THE  folloAving  is  one  of  tlie  hend-notes  to  the 
case  of  Barrow  v.  Richard,  8  Paige,  351 : 
"A  very  highly  colored  description  of  the  noxious 
effects  of  coal-dust,  in  a  sworn  bill  in  chancery, 
altliongh  somewhat  poetical,  cannot  be  treated  by 
the  Court  as  a  mere  poetic  fiction ;  but  upon  de- 
murrer to  the  bill,  such  coal-dust  will  be  consid- 
ered as  a  real  nuisance."' 

The  Chancellor.  "The  allegation  in  the  bill 
on  this  subject,  though  it  is  a  little  poetical,  cannot 
be  considered  a  mere  poetic  fiction,  as  it  is  sworn 
to  by  the  complainant,  and  is  admitted  by  the 
demurrer.  lie  there  states  that  large  quantities 
of  volatile  and  offensive  dust  and  smut  from  the 
coal  rise  in  the  air,  and  are  diffused  by  the  wind 
into  the  premises  of  the  neighboring  inliabitants. 
And  in  spite  of  all  their  care,  such  coal  dust  and 
smut  not  only  settles  upon  their  walks  and  their 
grass  plats,  but  also  on  their  fragrant  plants  and 
flowers,  'beclouding  the  brightness  and  beauty 
which  a  beneficent  Creator  has  given  to  make 
them  pleasant  to  the  e3'e,  and  cheering  to  the 
heart  of  man.'  But  what  must  be  still  more  offen- 
sive to  the  ladies  of  the  neighborhood,  '  this  filthy 
coal-dust  settles  upon  their  doorsteps,  thresholds, 
and  windows,  and  enters  into  their  dwellings, 
and  into  their  carpets,  their  cups,  their  kneading- 
troughs,  their  beds,  their  bosoms,  and  their  lungs ; 
discoloring  their  linen  and  their  otherwise  stain- 


ODDITIES   OF  THE  LAW.  15 

less  raiment  and  robes  of  beauty  and  comfort, 
defacing  their  furniture,  and  blackening,  besmear- 
ing, and  injuring  every  object  of  utility,  of  beauty, 
and  of  taste.'  Making  all  due  allowance  for  the 
coloring  "vvhich  the  pleader  has  given  to  this  nat- 
urally dark  picture,  it  is  perfectly  certain  that  this 
keeping  of  a  coal-yard  upon  any  of  these  lots  is 
a  business  offensive  to  the  neighboring  inhabitants, 
according  to  the  spirit  and  intent  of  these  restric- 
tive covenants." 


IN  the  course  of  the  argument  in  the  case  of  The 
Betsey,^  Marshall,  C.  J.,  observed,  "  No  attempt 
has  been  made  to  distinguish  this  case  from  those 
of  The  Vengeance  ^  and  The  Sally .-^  Those  cases 
have  settled  the  law ;  and,  unless  this  case  can  be 
distinguished  from  those,  the  Court  does  not  think 
an  argument  necessary."  C.  Lee  for  the  claimant: 
"  I  hope  to  show  that  this  case  is  distinguishable 
from  those,  and  to  be  permitted  to  argue  at  large 
the  point  of  law,  that  this  is  not  a  case  of  admi- 
ralty jurisdiction.  I  argued  the  case  of  The  Ven- 
geance, and  1  know  it  was  not  so  fully  argued  as 
it  might  have  been ;  and  some  of  the  judges  may 
recollect  that  it  was  a  rather  sudden  decision." 
Mr.  Justice  Chase  answered,  "  I  recollect  that  the 
argument  was  no  great  thing ;  but  the  Court  took 
time,  and  considered  the  case  well.^^ 

1  4  Cranch,  44G.  2  3  Dallas,  297.  »  2  Crancli,  406. 


16  ODDITIES   OF  THE  LAW.  , 

"T^TPON  the  question  of  cruel  treatment,"  said 
^^  the  Court  in  a  case  in  Indiana,  which  was 
a  i:)etition  for  a  divorce,  "we  tliink  the  evidence 
was  sufficient  to  justify  the  finding.  Among  other 
facts  one  Avitness  sAvore  that  he  '  saw  the  wife 
come  out  of  the  back  door  of  tlie  husband's  house, 
and  his  foot  was  after  her.'  The  Court  may  have 
inferred  from  this  tliat  slie  was  forcibly  expelled 
from  the  house."  ^ 


A 


NEGOTIABLE  note  given  for  a  gaming 
consideration  is  void  in  the  hands  of  even 
an  innocent  holder  for  value.  Unger  v.  Boas,  13 
Penn.  State,  601.  "  The  argument  here  is,"  said 
the  Court,  by  Mr.  Justice  Burnside,  "  that  com- 
merce is  to  be  encouraged,  and  therefore  we  ought 
to  decide  in  favor  of  an  innocent  indorsee.  I  am 
Avell  satisfied  that  we  shall  not  send  a  vessel  less 
to  sea  by  taking  from  commerce  the  uncertain 
aid  of  faro-banks  and  other  a:amin<]r-tables." 


IN  New  York  it  has  been  determined  that  the 
fact  that  inspectors  of  elections,  and  the  clerks, 
are  sworn  upon  Watts's  Psalms  and  Hymns, 
and  not  upon  the  Gosj^els,  will  not  invalidate  the 
election.! 

1  Sullivan  v.  Sullivan,  34  Indiana,  371. 
1  People  V.  Cook,  14  Barb.  25'J,  299. 


ODDITIES    OF  TUB  LAW.  17 

TN  Touchard  v.  Crow,  20  Cal.  150,  163,  which 
-L  was  a  jury-waived  case,  the  Court  charged 
itself  as  a  jury  on  questions  of  fact.  On  appeal, 
Field,  C.  J.,  thus  disposes  of  this  part  of  the  case : 
"  This  action  was  tried  by  the  Court  without  the 
intervention  of  a  jury.  Of  course,  in  such  cases, 
the  Court  not  only  performs  its  peculiar  and  ap- 
propriate duty  of  deciding  the  law,  but  also  dis- 
charges the  functions  of  a  jur}-,  and  passes  upon 
the  facts.  The  counsel  of  the  appellants  im- 
j)ressed,  as  it  would  seem,  with  this  dual  character, 
requested  the  Court  to  charge  itself  as  a  jury,  and 
handed  in  certain  instructions  for  that  purpose. 
The  Court,  thereupon,  formally  charged  that  part 
of  itself  which  was  thus  supposed  to  be  separated, 
and  converted  into  a  jur}',  commencing  the  charge 
with  the  usual  address,  '  Gentlemen  of  the  jury,' 
and  instructing  that  imaginary  body,  that,  if  they 
found  certain  facts,  they  should  find  for  the  plain- 
tiff, and  otherwise  for  the  defendants,  and  that 
they  Avere  not  concluded  by  the  statements  of  the 
Court,  but  were  at  liberty  to  judge  of  the  facts 
for  themselves.  The  record  does  not  inform  us 
whether  the  jury  thus  addressed  differed  in  their 
conclusions  from  those  of  the  Court.  These  pro- 
ceedings have  about  them  so  ludicrous  an  air,  that 
we  could  not  believe  they  were  seriously  taken, 
but  for  the  gravity  with  which  counsel  ou  the 
argument  referred  to  them." 


18  ODDITIES    OF   THE  LA]]-. 

MR.  COMMISSIONER  FANP:,  in  liis  exami- 
nation before  a  committee  of  the  House  of 
Lords,  calls  the  citing  of  an  unreported  case 
pocket  pistol  law.^ 

"  rinilE  next  cast  of  a  fisherman's  net  "  has  long 
-L  been  used  as  an  illustration  of  a  mere  ex- 
pectancy, not  the  subject  of  grant.  In  a  late  case 
in  Massachusetts  it  was  sought  to  substantiate 
such  a  sale,  and  the  Court  were  obliged  to  adjudge 
that  a  man  has  no  salable  interest  in  halibut  in 
the  sea.  There  is  a  possibility,  they  say,  the  man 
may  catch  halibut ;  but  he  has  no  actual  or  poten- 
tial interest  in  the  fish  until  he  has  caught  them.^ 


MR.  JUSTICE  VENTRIS  states  that  a  man 
"  cannot  have  an  estate  j^ut  into  him  in  spite 
of  his  teeth."  3 

"/"XFTEX  an  entire  failure  of  consideration  in 
^y  the  receipt  of  what  is  mere   moonshine  is 
sufficient  to  rescind  a  contract."  ^ 

1  1  Lindley  on  Partnership,  42. 

2  Low  V.  Pew,  108  Mass.  .347.  Tlie  other  ma.xini  (not  of  the 
law)  is  a]>pli(.-able:  "  First  catch  your  fish,"  etc.  Cited  in  1  Jones 
on  Mortc;a<:^PS,  §  13G. 

8  Thomson  v.  Leach,  2  Vent.  20G,  quoted  by  Abbott,  C.  J.,  in 
Townson  v.  Tickell,  3  B.  &  A.  .35. 

*  Per  "Woodbury,  J.,  iu  Waruer  v.  Daniels,  1  W.  Sc  M.  110. 


onniriES  of  the  law.  19 

LORD  ELDON  once  observed,  "It  is  with 
great  regret,  if  that  expression  may  properly 
come  from  a  judicial  mouth,  tliat  I  am  compelled 
to  say  that  this  action  cannot  be  maintained."  ^ 


THE  law,  it  is  true,  aids  the  vigilant,  and  not 
the    slothful.      It   is   possible,    nevertheless, 
even  in  such  a  case,  to  rise  too  early .^ 


IN  Perkins  on  Conveyancing,  §  300,  is  this  pas- 
sage :  "  Now  are  we  to  speak  of  dower.  And 
as  unto  that  know,  that,  as  i\Ir.  Littleton  hath 
well  showed  and  set  forth  in  his  first  book,  there 
are  five  manner  of  doAvers,  which  appear  in  this 
chapter  of  Dowers ;  and  many  and  diverse  good 
cases  concerning  dower  are  there  put  by  my  Lord 
Littleton.  And  also  there  are  so  many  good  and 
necessary  cases  concerning  dower  put  upon  the 
writs  of  dower,  in  'Natura  Brevium,'  with  the 
additions,  that  a  man  can  hardly  speak  any  thing 
more  concerning  dower  bej'ond  wliat  is  sliowed 
and  said  in  the  same  l)ook.  And  yet^  notiolihxiand- 
infj  that,  Homething  shall,  hy  the  yrace  of  Qod,  he  said 
here  concerning  dower.'''' 

1  Campbell  v.  Stein,  6  Dow,  135,  136. 

2  Per  Rooacvelt,  J.,  in  Livingston  v.   Bank  of  New  York, 
2G  Barb.  309. 


20  ODDITIES   OF  THE  LAW. 

IN  a  very  recent  case  in  Tennessee  it  was 
decided  that  a  liusband  and  father  who  luis  a 
policy  of  insurance  on  his  life,  payable  to  liini,  his 
executors,  administrators,  and  assigns,  may  dispose 
of  it  by  will.^  In  the  judgment.  Chancellor  Cooper 
gives  a  liumorous  version  of  the  case  of  Hales  v. 
Petit,  1  Plowd.  253  :  — 

"  The  very  point  made  Ijy  the  learned  coun- 
sel was  elaborately  argued  and  considered  three 
centuries  ago  in  one  of  the  celebrated  causes  of 
that  da}^,  —  a  cause  rendered  still  more  memo- 
rable b}'  the  fact  that  it  is  supposed  to  have  been 
the  occasion  of  one  of  the  colloquies  of  the  Sliak- 
sperian  drama.  Plowden's  Reports  were  popular 
when  first  published,  having  been  four  times  re- 
printed during  the  last  quarter  of  the  sixteenth 
century.  They  have  been  commended  by  our 
ablest  American  commentator  for  their  authen- 
ticity and  accuracy,  and  as  '  exceedingly  interest- 
ing and  instructive  by  the  evidence  they  afford  of 
the  extensive  learning,  sound  doctrine,  and  logical 
skill  of  the  ancient  English  bar.'^  Better  author- 
ity, therefore,  we  could  not  find. 

"In  Hales  v.  Petit,  1  Plowd.  253,  Sir  James 
Hales,  one  of  the  Justices  of  the  Common  Pleas, 
a  son  of  an  eminent  Baron  of  the  Exchequer,  was 

1  TVilliams  v.  Corson,  2  Tcnn.  Clianc.  2fi0,  A.D.  1875. 

2  "  Exquisite  and  elaborate  Commentaries,"  says  Lord  Coke. 
Pref.  to  3  Kep.  viii. 


ODDITIES   OF  TUE  LAW.  21 

found  by  a  coroner's  jury  to  have  wilfully  gone 
into  a  river,  '  and  liiniself  therein  feloniously  and 
voluntarily  drowned.'  Such  an  act  was,  in  those 
days,  if  not  'rank  burglary,'  at  least  felony  with- 
out benefit  of  clerg}',  and  not  only  deprived  the 
guilty  party  of  Christian  burial,  but  occasioned  a 
forfeiture  of  his  goods  and  chattels  to  the  Crown. 
The  suit  was  between  an  assignee  claimino-  under 
the  Crown,  and  the  widow  of  the  deceased,  and 
raised  the  question  whether  a  joint  lease  to  Justice 
Hales  and  wife  was  forfeited  to  the  Crown,  or  sur- 
vived to  the  widow.  The  argument  turned  upon 
the  nice  point  whether  the  felony  of  the  husband 
was  consummate  in  his  lifetime,  or  only  after  his 
death. 

"  Two  able  sergeants  sought,  on  behalf  of  the 
widow,  to  satisfy  the  Court  that  the  felony  was 
consummated  after  the  death  of  the  distinguished 
judge.  The  following  is  a  specimen  of  the  'sound 
doctrine  and  logical  skill '  of  these  members  of  ilie 
ancient  English  bar.  Tliey  insisted  that  the  '  for- 
feiture shall  onl}'-  have  relation  to  the  time  of  the 
death,  and  the  death  precedes  the  forfeiture,  for 
until  the  death  is  fully  consummate  he  is  not  a  felo 
de  se ;  for  if  he  had  killed  another,  he  should  not 
have  been  a  felon  iinli]  the  other  had  been  dead. 
And  for  the  same  reason  he  cainiot  be  a  felo  de  se 
until  tlie  death  of  himself  be  fully  had  and  con- 
summate.    For  the  death  precedes  the  felony  both 


22  ODDITIES   OF  THE  LAW. 

in  the  one  case  and  in  the  other,  and  the  death 
precedes  the  forfeiture.  But,  nevertheless,  the 
forfeiture  comes  at  the  same  instant  that  lie  dies. 
Yet  in  things  of  an  instant  there  is  priority  of  time 
in  consideration  of  hiw,  and  the  one  shall  be  said 
to  precede  the  other,  although  both  shall  be  said 
to  happen  at  one  instant ;  for  every  instant  con- 
tains the  end  of  one  time  and  the  commencement 
of  the  other.  And,  accordingly,  here  the  death  and 
the  forfeiture  shall  come  together  and  at  one  same 
time,  yet  there  is  a  priority  ;  that  is,  the  end  of  the 
life  makes  the  commencement  of  the  forfeiture, 
thongh,  at  the  same  time,  the  forfeiture  is  so  near 
to  the  death,  that  there  is  no  meantime  between 
them,  }ct,  notwithstanding  that,  in  consideration 
of  law,  the  one  precedes  the  other,  but  by  no 
means  has  the  forfeiture  relation  to  any  time  in 
his  life.' 

"  It  required  four  learned  sergeants,  on  behalf  of 
the  assignee  of  the  Crown,  to  meet  this  lucid  argu- 
ment. They  insisted  that  the  forfeiture  should 
have  relation  to  the  act  done  in  the  lifetime  which 
was  the  cause  of  the  death.  And  one  of  them  said, 
'  The  act  consists  of  three  parts.  The  first  is  the 
imagination,  which  is  a  reflection  or  meditation  of 
the  mind,  whether  or  no  it  is  convenient  for  him  to 
destro}'  himself,  and  what  waj^  it  can  be  done.  The 
second  is  the  resolution,  which  is  a  determination 
of  the  mind  to  destroy  himself,  and  to  do  it  in  this 


ODDITIES    OF   THE  LAW.  23 

or  that  particular  wa}'.  The  third  is  the  perfection, 
which  is  the  execution  of  what  the  mind  has  re- 
solved to  do.  And  this  perfection  consists  of  tAvo 
parts,  viz.,  the  beginning  and  the  end.  The  begin- 
ning is  the  doing  of  the  act  which  causes  the  death, 
and  the  end  is  tlie  death,  which  is  only  a  sequel  to 
the  act.'     And  much  more  to  the  same  purport. 

"  The  reasoning  of  the  Court  is  in  the  same 
learned  and  discriminating  vein.  For  the  Lord 
Dj-er  said :  '  That  five  things  are  to  be  considered 
in  this  case.  First,  the  quality  of  the  offence ; 
secondly,  to  whom  the  offence  is  committed ; 
thirdl}-,  what  shall  be  forfeit ;  fourthly,  from  what 
time  the  forfeiture  shall  commence ;  and  fifthly, 
if  the  term  here  shall  be  taken  from  the  wife.' 
And  Sir  Anthony  Brown,  J.,  said :  '  Sir  James 
Hales  was  dead ;  and  how  came  he  to  his  death  ? 
It  may  be  answered.  By  drowning.  And  who 
drowned  him  ?  Sir  James  Hales.  And  when  did 
he  drown  him  ?  In  his  lifetime.  So  that  Sir 
James  Hales,  being  alive,  caused  Sir  James  Hales 
to  die,  and  the  act  of  the  living  man  was  the  death 
of  the  dead  man.' 

"  The  decision  was  in  favor  of  the  assignee  of  the 
Crown,  and  upon  tlie  ground  that  the  act  of  the 
living  man  was  the  effective  cause  of  the  felony, 
althougli  the  latter  was  only  consummate  upon  the 
death.  It  is  an  authority  directly  in  point  on  the 
question   before  us,  and  binding  as  a  precedent, 


24  ODDITIES   OF  THE  LAW. 

whatever  may  be  said  of  the  peculiar  form  in 
which  its  logic  is  presented. 

"  The  Elizabethan  drama  is  full  of  legal  allu- 
sions, showing  that  the  business  of  the  courts  was 
brought  home  to  the  people  in  those  days,  even 
more  than  in  our  era.  What  wonder,  then,  that 
the  great  dramatist,  in  Ins  marvellous  range  of 
vision,  should  see  this  specimen  of  legal  acumen, 
and  serve  it  up  for  the  amusement  of  the  ground- 
lings, and  as  a  foil  to  the  tragic  end  of  the  gentle 
Ophelia ! 

"  In  Sir  James  Hales's  case  the  coroner  sat  on 
him,  and  found  it  felony.  In  Ophelia's  case  the 
'  crowncr '  sat  on  her,  and  found  it  Christian 
burial.  In  the  first  case  the  learned  counsel  says 
that  the  act  consists  of  three  parts,  —  the  imagina- 
tion, the  resolution,  and  the  perfection.  '  If  I 
drown  myself  Avittingly,'  says  the  clown,  'it 
arsfues  an  act ;  and  an  act  hath  three  branches :  it 
is  to  act,  to  do,  and  to  perform.'  The  learned 
Court  discusses  its  case  upon  the  supposition  that 
the  man  went  to  the  water.  The  clown  concedes 
that,  '  if  the  man  go  to  the  water,  and  drown  him- 
self, it  is,  Avill  he,  nill  he,  he  goes.  But,'  he  adds, 
'  if  the  water  come  to  him,  he  droAvns  not  himself: 
argal,  he  that  is  not  guilty  of  his  own  death 
shortens  not  his  own  life.'  'Biit  is  this  law?' 
queries  his  fellow  clown.  '  Ay,  marry  is't  ; 
Crowner's  Quest  Law." 


ODDITIES    OF  THE  LAW.  25 

IN  a  case  ^  where  the  decree  was  made  thirty- 
eight  years  after  the  commission  of  the  waste, 
Shadwell,  Vice  Chancellor  of  England,  thus  de- 
scribes the  principle  upon  which  a  wrongdoer  is 
not  protected  by  time :  "  That  the  author  of  a 
mischief  is  not  to  complain  of  the  result  of  it  .  .  . 
is  a  proposition  supported  by  the  Holy  Scriptures 
and  by  the  decisions  of  our  own  courts  of  equity ; " 
and  he  further  quotes  St.  Matthew's  Gospel,  xxvi. 
52,  and  Ovid.2 

rr^H  ROUGH  OUT  the  report  of  the  case  of 
-L  Conustable  v.  Clowbury,  Noy,  75,  the  word 
"ship  "  should  be  substituted  for  "-wife."  In  the 
notes  originally  taken  by  Noy,  the  word  would 
probably  be  "nief,"  which  might  be  rendered 
either  ''ship,''  or  the  ^^  wife  of  a  villein."^ 


THE  reader  is  referred  to  the  charge  to  the 
jury  in  the  case  of  State  v.  Brown,  G7  N.  C. 
442,  iji  which  a  negro  was  charged  with  liaving 
committed  rape  on  the  body  of  a  white  AVDman. 
It  is  loo  h)iig  for  quotation. 

1  Leeds  V.  Amherst,  2  Phillips,  117;  20  Beav.  239;  11  Sim.  337, 
f.'ited  in  Banniiic;  on  Limitations,  99. 

2  Ncque  eni.n  lex  a'quior  iilla  est, 
Quam  nc'cis  artifices  arte  perire  suu.  —  Ars  Amai.  I.  v.  G55. 
3  2M.  &  G.  18  note. 


26  ODDITIES   OF  THE  LAW. 

THE  following  eulogy  on  the  common  law  is 
taken  from  tlie  opinion  in  the  case  of  Snow- 
den  V.  Warder,  3  Kawle,  103,  104:  — 

"  The  common  law  is  truly  entitled  to  our  high- 
est veneration ;  and  altliough  it  has  been  said  by 
some  to  have  been  instituted  by  Brutus,  the 
grandson  of  iEneas,  and  the  first  King  of  Eng- 
land, who  died  when  Samuel  was  judge  of  Israel, 
and  who  wrote  a  book  in  the  Greek  tongue,  Avhich 
he  called  '  The  Laws  of  the  Britons,'  and  which 
he  had  collected  from  the  laws  of  the  Trojans,  it 
is  nevertheless  not  entitled  to  our  veneration  on  ac- 
count of  its  antiquity  ;  for  nearly  all  that  is  valuable 
in  it  is  com2~)aratively  of  modern  date.^  Neither  is 
it  entitled  to  our  respect  on  account  of  the  ancient, 
absurd,  and  superstitious  modes  of  trial,  none  of 
which  have  the  slightest  resemblance  to  our 
present  trial  by  jury.  Still  less  does  it  deserve 
our  admiration  on  account  of  the  feudal  system, 
which  imposed  a  restraint  upon  every  effort  to 
improve  the  jurisprudence  of  the  country,  and 
.which  prevented  the  adoption  of  those  maxims 
of  justice  and  equity  which  now  ren  ^er  it  the 
admiration  f  the  enlightened  jurist,  and  the  favor- 
ite of  the  people.  It  is,  however,  entitled  to  cur 
veneration,  because  it  has,  within  the  last  two 
centuries,  been  moulded  by  the  Avisdom  of  the 
ablest  statesmen,  and  a  succession  of  learned  and 
1  See  Preface  to  3d  Kep. 


ODDITIES   OF  THE  LAW.  27 

liberal^ninded  judges,  into  a  flexible  system,  ex- 
panding and  contracting  its  provisions,  so  as  to 
correspond  to  the  changes  that  are  continually 
taking  place  in  society  by  the  progress  of  luxury 
and  refinement.  As  the  youthful  skin  of  a  vigor- 
ous child  expands  with  its  growth,  and  accommo- 
dates itself  to  every  development  which  the  body, 
in  its  progress  to  maturity,  makes  of  its  powers, 
capacities,  and  energies,  so  does  the  common  law, 
in  order  to  suit  the  exigencies  of  society,  possess 
the  power  of  altering,  amending,  and  regenerating 
itself.  It  lias  been  truly  and  eloquently  said,  that 
'  it  is  the  law  of  a  free  people,  and  has  freedom  for 
its  end ;  and  under  it  we  live  both  free  and  happy. 
When  we  go  forth,  it  walks  silently  and  unobtru- 
iselvy  by  our  side,  covering  us  with  its  invisible 
shield  from  violence  and  wrong.  Beneath  our 
own  roof,  or  by  our  own  fireside,  it  makes  our 
home  our  castle.  All  ages,  sexes,  and  conditions 
share  in  its  protecting  influence.  It  shadows  with 
its  wings  the  infant's  cradle,  and  with  its  arm 
upholds  the  tottering  steps  of  age.'  It  is  the  duty 
of  the  judiciary  not  only  to  guard  it  with  vigilance 
against  incongruous  innovations,  but  also  to  ex- 
tend the  operation  of  its  principles,  so  as  to 
emljrace  all  the  new  and  various  interests  which 
arise  among  an  active  and  enterprising  people. 
Thus  much  for  the  common  law." 


28  ODDITIES   OF  THE  LAW. 

THE  language  of  the  Court  on  the  tj-ial  of 
questions  of .  legitimacy,  as  reported  in  the 
Year  Books,  was  sometimes  more  emphatic  than 
decorous.  Judge  Kichell  improved  upon  the 
maxim  of  civil  law  in  favor  of  legitimacy  by 
making  it  of  still  more  general  application.  lie 
says,  ^'  For  who  that  bulleth  my  cow,  the  calf  is 
mine."  ^  Perhaps  Shakespeare  intended  to  immor- 
talize Judge  Richell  and  his  learned  brethren,  by 
making  them  the  prompters  of  King  John,  in  the 
following  address  to  Robert  Falconbridge  :  — 

King  Joiix.     Sirrah,  your  brother  is  legitimate; 

Your  father's  wife  did  after  wedlock  bear  him  : 
And,  if  she  did  play  false,  the  fault  was  hers; 
"Which  fault  lies  on  the  hazards  of  all  husbands 
That  marry  wives.     Tell  me,  how  if  my  brother, 
AVho,  as  you  say,  took  pains  to  get  this  son. 
Had  of  your  father  claim'd  this  son  for  his? 
In  sooth,  (jood  friend,  your  father  wight  have  kept 
Thi.^  calf,  bred  from  his  cow,  from  all  the  world  ; 
In  sooth,  he  midit:  then,  if  he  were  my  brother's, 
My  brother  might  not  claim  him;  nor  your  father, 
Being  none  of  his,  refuse  hira.     This  concludes,  — 
My  mother's  son  did  get  your  father's  heir; 
Your  father's  heir  must  have  your  father's  land. 

Act  i.  sc.  1. 


"  ry^HAT  excellent  code  which  has  grown  gray 
-L    by  the  awfid  lioar  of  innumerahle  agesy  ^ 

1  Year  Book,  7  Hen.  IV.  9,  13.    Barony  of  Gardner,  Iv.  note. 

2  Hall  Admiralty,  91. 


ODDITIES    OF   THE  LAW.  29 

TO  the  case  of  iNIoore  v.  Moore,  2  Atk.  2T3, 
wliich  arose  upon  some  differences  and  disputes 
between  husband  and  ^yife,  the  reporter  appended 
the  famous  "  Nota  Bene  :  '  Mr.  Attorney  General,^ 
after  the  decree  was  pronounced,  said,  this  was  so 
uncommon  a  case  that  probably  it  would  never 
happen  again.  The  Lord  Chancellor  ^  replied. 
If  you  think  so,  you  must  have  a  very  good 
opinion  of  tlie  ladies ;,  for 

In  amore  haec  omnia  insunt  vitia:  injuriae, 
Suspiciones,  ininiicitife,  induciae, 
Bellum,  pax  rursura.'  "  ^ 


"  "TTT^E  do  not  impeach  the  omnipotence  of  the 

»  ▼  Legislature  for  creating  attorneys,  as  the 
world  was  created,  out  of  nothing ;  or  the  power 
to  control  such  eccentric  orbs  within  their  appro- 
priate spheres.  Our  province  is  rather  to  ascer- 
tain their  orbits',  and  to  harmonize  their  motions, 
if  possible,  with  the  movements  of  other  bodies."  * 


D 


ECLARATION     in      Murphy     v.     Staton, 
3    Munf.    239,    "for    negligently   ducking" 


certain  goods. 


1  Sir  Diulley  Ryder. 

2  Lord  Hardwickc. 

8  Terence,  Eunnchns,  Act  i.  sc.  1,  near  the  oomraencement. 
*  Per  Cutting,  J.,  in  Simmons  v.  Jacobs,  52  Maine,  150. 


30  ODDITIES    OF  THE  LAW. 

IN  a  recent  case  in  Indiana,  the  Chief  Justice 
tlms  discourses  :  ^  ''  Immediately  after  the  fall 
of  Adam  there  seems  to  have  sprung  up  in  his 
mind  an  idea  that  there  was  such  a  thing  as  de- 
cency and  such  a  thing  as  indecency ;  that  there 
was  a  distinction  between  them ;  and  since  that 
time  the  ideas  of  decency  and  indecency  have  been 
instinctive  in,  and  indeed  parts  of,  humanity. 
And  it  historically  appears  that  the  first  most 
palpable  piece  of  indecency  in  a  human  Ijeing  was 
the  public  exposure  of  his  or  her,  as  now  commonly 
called,  privates ;  and  the  first  exercise  of  mechani- 
cal ingenuity  was  in  the  manufacture  of  fig-leaf 
aprt)ns  by  Adam  and  Eve,  by  which  to  conceal 
from  the  public  gaze  of  each  other  their  now,  but 
not  then,  called  privates.  This  example  of  cover- 
ing their  privates  has  been  imitated  by  all  man- 
kind since  that  time,  except,  perhaps,  b}*  some  of 
the  lowest  grades  of  savages.  jNIodesty  has  ever 
existed  as  one  of  the  most  estimable  and  admirable 
of  human  virtues." 


HASTELOW  V.  Jacksox,  8  B.  &  C.  221.  "  I 
accede  to  the  authority  of  that  case,  al- 
though I  think  it  a  very  strong  decision.  It  does 
not  convince  me  :  it  overcomes  may  Per  Alderson, 
B.  in  Mearing  v.  Hellings,  14  M.  &  W.  711,  712. 

1  Ardery  v.  State,  5G  Ind.  328,  329,  A.D.  1877. 


ODDITIES   OF  THE  LAW,  31 

THE  late  Lord  Justice  James  observed  in  a  re- 
cent case,  "It  appears  to  me  that  the  proper 
place  for  such  an  argument  as  this  would  be  in 
some  satirical  work  ridiculing,  by  clever  exaggera- 
tion the  doctrines  of  the  Court  of  Equity  with 
respect  to  constructive  notice.  It  is  not,  to  my 
mind,  a  substantial  argument,  capable  of  being 
addressed  with  any  effect  to  any  court  what- 
ever." 1 


SIR   James   Stephen  says,    "The   criminal  law 
stands  to  the  passion  of  revenge  in  much  the 
same  relation  as  marriage  to  the  sexual  appetite."  ^ 


EICH  V.  Basterfield,  4  C.  B.  783,  is  the 
only  case  at  all  in  your  favor,  and  I  think 
that  is  a  desperate  refinement."  Per  Blackburn,  J., 
in  Harris  v.  James,  45  L.  J.  Q.  B.  546 ;  35  L.  T. 
241. 

"AN  accident  is  something  which  may  be  pres- 
-^^^  ent   or   absent,  without  detriment  to  the 
subject."  3 

1  Hunter  V.  Walters,  7  Ch.  A  pp.  80. 

2  General  View  of  the  Criminal  Law  of  England,  p.  90. 

3  Cited  by  Chief  Justice  Metingham,  through  a  Latin  transla- 
tion, from  Porphyrins,  Year  Book,  21  &  2'J  Edward  I.  72. 


32  ODDITIES   OF  TUB  LAW. 

NON   temere   credere    est    nervus    sapientise. 
Not  to  believe  rashly  is  the  nerve  of  wis- 
dom.^ 


IF  a  pauper  be  nonsuited,  the  usual  practice  is  to 
tax  the  costs,  and  for  non-payment  to  order 
him  to  be  whipped.^  Salkeld  reports  :  "  I  moved 
that  a  pauper  might  be  wliipped  for  non-jiayment 
of  costs  upon  a  nonsuit,  and  the  motion  Avas  denied 
by  Holt,  C.  J.,  saying-  he  'had  no  officer  for  that 
purpose,  and  never  knew  it  done.'  "  ^ 


"  A  LBEIT  he  that  hath  accomplished  the  age 
-lIA-  of  fourteen  years  at  the  time  of  the  mar- 
riage be  not  then  able  to  pay  the  debt  which  he 
oweth  to  his  wife,  3"et  by  the  received  opinion 
(though  some  dissent),  the  matrimou}^  is  not 
therefore  by  and  by  to  be  adjudged  void ;  but 
she  is  to  expect  until  he  have  overreached  the 
eighteenth  3-ear  of  his  age,  wherein  plena  pubertas 
is  concluded ;  and  if  then,  also,  he  be  unable  to 
pay  liis  dues,  at  the  instance  of  the  woman  the 
marriage  may  be  dissolved,  unless  the  judge,  upon 
the  consideration  of  the  equalities  of  the  persons, 
shall  grant  a  longer  time."^ 

1  Wade's  Case,  5  Rep.  114  b.       3  2  Salk.  50G, 

2  Bac.  Ab.  Pauper  D.  ^  Swinbourne  on  Spousals,  49. 


ODDITIES   OF  THE  LAW.  33 

ry^HE  chronicler  relates  that  Alan  de  Neville, 
-L  chief  forester  of  Henr}^  the  Second,  pleased 
the  king  during  his  (Alan's)  lifetime,  but  that 
upon  his  death,  when  the  brethren  of  a  certain 
monastery  sought  a  portion  of  his  .substance  for 
their  house,  the  king  showed  his  regard  for  his 
late  forester  b}^  replying,  "  I  shall  have  his  wealth  ; 
but  j-ou  may  have  his  carcass,  and  the  devil  may 
have  his  soul."  ^ 


A  CURIOUS  instance  of  the  plea  molliter 
manus  imposuit  occurs  in  a  case  reported 
in  Levinz.2  The  ])lea  to  an  action  for  assault  and 
battery  was  that  the  female  defendant,  being  the 
wife  of  an  esquire  and  justice  of  the  peace,  the 
female  plaintiff  being  the  wife  of  a  doctor  in 
divinity,  assumed  to  go  before  her  at  a  funeral 
at  Plymouth,  whereupon  the  defendant  gently 
laid  her  hands  upon  to  displace  her,  as  she  law- 
fully might.  The  Court,  without  deciding  the 
question  of  precedence,  gave  judgment  for  the 
plaintiff. 


SliNION  filius  Petri,  Baron  of  the  Exchequer, 
anno  XI.  Hen.  II.3 

1  Bigelow,  History  of  Procedure  in  England,  14G,  note. 

2  Ashton  V.  Jennings,  2  Lev.  123. 
«  2  Madox  Hist.  Exch.  313. 


34  ODDITIEti   OF  THE  LAW. 

IT  was  decided,  in  the  ]-)uelicss  of  Kingston's 
case,  that  a  judgment  which  liad  been  ob- 
tained by  fraud  would  not  stand  in  the  way  of  a 
prosecution  of  the  duchess  for  bigamy ;  that  the 
suit  in  the  Ecclesiastical  Court  was  a  contrivance 
merely,  a  link  in  the  chain  of  fraud,  and  in  truth 
no  judgment.  According  to  the  pln-ase  used  by 
Lord  Loughborough,  Fabula,  non  judicium,  hoc 
est ;  in  scenii,  non  in  foro,  res  agitur.' 


"OTANDS     in    his    shoes."     "An    expressive 
O  phrase."  2 


HENRY  HUNT,  the  famous  demagogue,  hav- 
ing been  brought  up  to  receive  sentence  upon 
a  conviction  for  holding  a  seditious  meeting,  began 
his  address  in  mitigation  of  punishment  by  com- 
plaining of  certain  persons  who  had  accused  him 
of  "  stirring  up  the  people  by  dangerous  eloquence.''' 
Lord  EUenborough,  C.  J.  (in  a  very  mild  tone) : 
"My  impartiality  as  a  judge  calls  upon  me  to 
say,  sir,  that,  in  accusing  you  of  that,  they  do 
you  great  injustice."^ 

1  Lord  Cranworth,  in  Sheclden  v.  Patrick,  1  Macqueen,  008, 
citing  Wedderburn,  S.  G.,  in  The  Duchess  of  Kingston's  Case, 
20  Howell  State  Trials,  479. 

2  Per  Ilosnier,  C.  J.,  in  Enos  v.  Tuttle,  3  Conn.  250. 

8  Lord  Campbell,  Lives  of  the  Chief  Justices,  IV.  300,  3d  ed. 


ODDITIES   OF  THE  LAW.  35 

IN  Massachusetts,  in  a  very  recent  case,  the 
Court  say :  "  The  question,  which  has  been  so 
ably  and  exhaustively  argued  by  the  counsel  on 
each  side,  is  one  which  cannot  properly  arise  in 
this  case."  ^ 

BOLINGBROKE,  after  his  partial  pardon  and 
return  to  England,  being  suspected  of  har- 
boring a  person  accused  of  a  state  crime,  his 
house,  and  even  his  bed-chamber,  as  he  was 
lying  in  his  bed,  were  searched  by  the  ministers  of 
justice.  Traitorous  bed-fellow  with  him  he  had 
none ;  a  bed-fellow,  however,  he  had,  a  female, 
whose  reputation  would  have  been  ruined  by 
the  disclosure.  Confusion  more  or  less  he  could 
not  but  have  betrayed.  Had  the  search  ended 
there,  this  confusion  would  naturally  and  properly 
have  been  regarded  as  circumstantial  evidence  of 
the  crime  he  was  suspected  of.  His  presence  of 
mind  saved  him  from  that  mischance.  Uncover- 
ing enough  of  her  person  to  indicate  the  sex 
without  betraying  the  individual,  he  preserved 
himself  as  well  from  the  imputation  of  the  crime 
of  whicli  he  was  not  guilty  as  from  the  collateral 
misfortune  which  tliat  imputation  was  so  near 
brin^'iiiLT  on  his  head.^ 


1  Aulcb(ji-ough  National  Bank  v.  Rogers,  125  Mass.  34.3. 

2  3  Bcntham  Ev.  151  note. 


36  ODDITIES   OF  THE  LAW. 

"TN  regard  to  professional  communications,  the 
-■-  reason  of  public  policy  which  excludes  them 
applies  solely  to  those  between  a  client  and  his 
legal  adviser ;  and  the  rule  is  clear  and  well  set- 
tled that  the  confidential  counsellor,  solicitor,  or 
attorney  of  the  party,  cannot  be  compelled  to  dis- 
close papers  delivered,  or  communications  made  to 
him,  or  letters  or  entries  made  by  him,  in  that 
capacity.^ 

The  rigid  enforcement  of  this  rule  no  doubt 
operates  occasionall}^  to  the  exclusion  of  truth ; 
but  if  any  one  feels  inclined  to  condemn  the  rule 
on  this  ground,  he  will  do  well  to  reflect  on  the 
eloquent  language  of  the  late  Lord  Justice  Knight 
Bruce,  who,  while  discussing  this  subject  on  one 
occasion,  felicitously  observed,  "  Truth,  like  all 
other  good  things,  may  be  loved  unwisely  — 
may  be  pursued  too  keenly  —  may  cost  too 
much.  And  surely  the  meanness  and  the  mis- 
chief of  prying  into  a  man's  confidential  consul- 
tations with  his  legal  adviser,  the  general  evil 
of  infusing  reserve  and  dissimulation,  uneasiness, 
suspicion,  and  fear,  into  those  communications 
which  must  take  place,  and  which,  unless  in  a 
condition  of  perfect  security,  must  take  place 
uselessl}'  or  Avorse,  are  too  great  a  price  to  pay 
for  trutli  itself."  2 

1  1  Greenl.  Ev.  §  237. 

2  Pearse  v.  Pearse,  1  De  Gex  &  Smale,  28,  29 


ODDITIES   OF  THE  LAW.  37 

IT  was  finely  remarked  by  Roger  North,  that 
"  Generally,  in  the  law  as  well  as  in  all 
other  human  literature,  antiquity  is  the  founda- 
tion ;  for  he  that  knows  the  elder  can  distinguish 
what  is  new,  but  he  that  deals  only  in  the  new 
cannot  tell  how  fresh  or  stale  his  opinions  are, 
nor  from  whence  they  are  derived."  ^  But  it  is 
of  equal  importance,  that,  knowing  the  new,  he 
should  be  able  to  distinguish  the  elder.  It  is, 
indeed,  the  advice  of  Lord  Coke,  that  after  the 
student  "  is  enabled  and  armed  to  set  on  our 
Year  Books,  let  him  read  first  the  later  reports, 
for  two  causes :  First,  for  that  for  the  most  part 
the  latter  judgments  and  resolutions  are  the 
surest,  and  therefore  it  is  the  best  to  season 
him  Avith  them  in  the  beginning,  l)oth  for  the 
settling  of  his  judgment  and  for  the  retaining  of 
them  in  memory ;  secondly,  for  that  the  latter 
are  more- facile,  antl  easier  to  be  understood,  than 
the  more  ancient;  but,  after  the  reading  of  them, 
then  to  read  these  others  before  mentioned,  and  all 
the  ancient  authors  that  have  writen  of  our  law, 
for  I  would  wish  our  student  to  bo  a  complete 
lawyer."  ^ 

IT  is  a  beautiful  expression  of   Lord  Bacon's, 
tliat  "he  that  robs  in  darkness  breaks  God's 
lock." 

1  Discourse  on  the  Study  of  tlie  Laws,  p.  10,  cd.  1824- 

2  Co.  Litt.  240  b.     1  Kent  Coinni.  479. 


88  ODDITIES   OF  THE  LAW. 

THE  rule  that  ignorance  of  the  law  shall  not 
excuse  a  man,  or  relieve  him  from  the  penal 
consequences  of  a  crime,  is  sometimes  spoken  of 
as  arising  from  a  presumption  that  every  person 
knows  the  law.  Mr.  Justice  Maule  once  observed 
that  "  There  is  no  presumption  in  this  country 
that  every  person  knows  the  law :  it  would  be 
contrary  to  common  sense  and  reason  if  it  were 
so."  Martindale  v.  Falkner,  2  C.  B.  720.  This 
language  was  characterized  by  Mr.  Justice  Black- 
burn as  clear,  and  common  sense.  Regina  v. 
Tewksbury,  L.  R.  3  Q.  B.  629 ;  37  L.  J.  Q.  B. 
288.  No  j)rinciple  is  better  established  than  that 
ignorance  of  the  law  is  no  excuse  for  its  viokition. 
On  the  other  hand,  there  is  a  class  of  cases  in 
which  the  ignorance  of  facts  is  held  to  be  a  com- 
plete defence.' 

TN  The  Protector  v.  Geering,  Hardres,  99,  At- 
-L  kins  says,  arguendo,  "  Errors  are  like  felons 
and  traytors  ;  auT/  man  may  discover  them ;  they 
do  caput  gerere  lupinum." 


IN  Brown  v.  Littin,  1  P.  Wms.  140,  Lord  Keeper 
Harcourt  said,  "that,  this  being  an  island,  all 
imaginable  encouragement  ought  to  be  given  to 
trade." 

1  Heard  Crim.  PI.  152. 


ODDITIES   OF  THE  LAW.  89 

LORD  BACON,  in  his  advice  to  Mr.  Justice 
Hutton,  says,  "  You  should  be  a  light  to 
jurors  to  open  their  eyes,  but  not  a  guide  to  lead 
them  by  their  noses." 


TESTATORS  should  be  prevented,  if  possible, 
"  from  sinning  in  their  graves."  This  expres- 
sion, which  has  become  one  of  the  current  b}'- 
phrases  always  used  in  courts  of  equity  on  the 
fitting  occasion,  fell  from  Sir  John  Strauge,  in 
Thomas  v.  Brittnell,  2  Ves.  Sen.  314. 


"T    TEARS  AY  is  no  evidence ;    but  it  may  be 
-J — *-     admitted  in  corroboration  of  a  witness's 
testimony 


"  1 


SIR  BARTHOLOMEW  SHOWER'S  mode 
of  treating  Monmouth's  invasion  is  excel- 
lent for  its  brevity.  "  Memorandum.  In  Trinity 
Term,  Monmouth's  rebellion  in  the  West  prevent- 
ed much  business.  In  the  vacation  following,  by 
reason  of  that  rebellion,  there  was  no  assizes  held 
in  the  western  circuit  ;  but  afterwards  five  judges 
went  as  commissioners  of  oyer  and  terminer  and 
gaol-delivery,  and  three  hundred  and  ffty-one  of 
the  rebels  were  executed^''  etc.^ 

1  Gilb.  Ev,  890.  2  2  Show.  434. 


40  ODDITIES   OF  THE  LAW. 

SIR  FREDERICK  THESIGER^  afterwards 
Lord  Chelmsford,  being  engaged  in  tlie  con- 
duct of  a  case,  objected  to  tlie  irregularity  of  a 
learned  sergeant  who  repeatedly  put  leading  ques- 
tions in  examining  his  witnesses.  "  I  have  a  right," 
maintained  the  sergeant  doggedly,  "  to  deal  with 
my  witnesses  as  I  please."  —  "  To  that  I  offer  no 
objection,"  retorted  Sir  Frederick ;  "  You  may 
deal  as  you  like  ;  but  you  shan't  lead." 


'TTIHIS  is  a  very  impartial  country  for  justice," 
-L    said  Sam.     "  There  ain't  a  mao-istrate  e'oinjx 
as  don't  commit  hisself  twice  as  often  as  he  com- 
mits other  people."  —  Pickwick. 


IX  the  famous  Burgess's  Anchovy  Case  the 
two  sons  of  the  inventor  were  the  litigants. 
The  brother  who  succeeded  to  the  business  com- 
plained that  the  other  was  nevertheless  vending 
"Burgess's  Sauce."  Sir  J,  Knight  Bruce,  the  Vice 
Chancellor,  began  to  sum  up  as  follows :  "  All 
the  Queen's  subjects  are  entitled  to  manufacture 
pickles  and  sauces,  and  not  the  less  so  that  their 
fathers  have  done  it  before  them.  All  the  Queen's 
subjects  are  entitled  to  use  their  own  names,  and 
not  the  less  so  that  their  fathers  have  done  it 
before  them." 


ODDITIES   OF  THE  LAW.  41 

TTTHEN  Thelwall  was  on  his  trial  for  high 
▼V  treason,  he  wrote  the  following  note  clnr- 
ing  the  evidence  for  the  prosecution,  and  sent  it 
over  to  Erskine,  his  counsel :  "•  I  am  determined 
to  plead  my  cause  myself."  Erskine  wrote  under 
it,  "  If  you  do,  you'll  be  hanged ; "  to  which 
Thelwall  replied,  "  Then  I'll  be  hanged  if  I  do^ 


LORD  THURLOW,  whHe  at  the  bar,  met  a 
barrister  one  morning  who  accosted  him  with, 
"  Oh !  I  am  told  that  the  barmaid  at  Nando's  has  a 
Httle  baby."  —  "  What  the  d— 1  is  that  to  me  ?  " 
—  "  But,"  pursued  the  barrister,  "  I  hear  the  child, 
is  yours."  —  "  Then  what  the  d — 1  is  that  to  9/ou?  " 


"TTT"HEN  Plunket  was  driven  to  resign  the 
»  ^  Irish  Chancellorship,  he  was  succeeded  by 
Lord  Campbell.  The  day  of  the  latter's  arrival 
was  very  stormy,  and  a  friend  remarked  to  Plunket 
how  sick  of  his  promotion  the  passage  must  have 
made  the  new-comer.  "Yes,"  he  replied  ruefully; 
"but  it  won't  make  him  throw  up  the  seals." 


LORD   BROUGHAM  defined  a  lawyer  as  "a 
legal   gentleman    who   rescues   your   estate 
from  your  enemies,  and  keeps  it  himself." 


42  ODDITIES   OF  THE  LAW. 

IN  manslaughter,  according  to  the  old  authori- 
ties, there  can  be  no  accessories  before  the 
fact,  for  the  offence  is  sudden  and  unpremedi- 
tated ;  and  therefore,  if  A  be  indicted  for  murder, 
and  B  as  accessory,  if  the  jury  find  A  guilty  of 
manslaughter,  they  must  acquit  B.  But  the  doc- 
trine on  the  subject  has  been  verj'  differently 
adjudicated  in  recent  cases,  and  must  be  limited 
to  those  cases  where  the  act  which  causes  the 
death  is  sudden  and  unpremeditated.^  Thus,  a 
man  may  be  such  an  accessory  b}'"  procuring 
poison  for  a  pregnant  woman  to  take  in  order 
to  procure  abortion,  and  which  she  takes,  and 
thereby  causes  her  death.  Regina  v.  Gaylor, 
Dearsly  &  Bell  C.  C.  288;  7  Cox  C.  C.  253. 
During  the  argument  in  this  case,  Bramwell,  B., 
said,  "  Suppose  a  man,  for  mischief,  gives  another 

1  To  support  an  indictment  for  being  accessory  before  the  fact 
to  manslaughter,  as  well  as  to  other  felonies,  there  must  be  an 
active  proceeding  on  the  part  of  the  defendant :  he  must  procure, 
incite,  or  in  some  other  way  encourage,  the  act  of  the  principal. 
Therefore,  where  tlie  defendant  acted  as  stakeholder  on  the  occa- 
sion of  a  prize  fight  which  ended  in  the  death  of  one  of  the 
fighters,  but  took  no  other  i>art  in  the  circumstances  attending 
the  fight,  at  which  he  was  not  present,  than  to  hold  the  stakes, 
and  liand  them  over  afterwards  to  the  winner,  it  was  held  that 
Le  could  not  be  convicted  as  accessory  before  the  fact  to  the 
manslaughter.  During  the  argument  Mr.  Justice  ISIellor  asked, 
"  Can  there  be  an  accessory  before  the  fact  to  a  manslaughter  of 
this  kind,  whicli  is  not  in  any  way  contemplated  befor(;hand,  but 
which  occurs  accidentally?"  And  the  Court,  without  settling 
the  question,  quashed  the  conviction.  Regina  v.  Taylor,  L.  R. 
2  C.  C.  147. 


ODDITIES   OF  TUE  LAW.  43 

a  strong  dose  of  medicine,  not  intending  any  fur- 
ther injury  than  to  cause  him  to  be  sick  and 
uncomfortable,  and  death  ensues,  would  not  that 
be  manslaughter  ?  Suppose,  then,  another  had 
counselled  him  to  do  it,  would  not  he  who  coun- 
selled be  an  accessory  before  the  fact  ?  " 

"  The  case  of  Regina  v.  Gaylor,"  said  Mr.  Jus- 
tice Lord  in  a  very  recent  case,^  "is  a  peculiar 
one ;  and  it  is  interesting,  not  for  the  principles  of 
law  which  were  or  might  be  supposed  to  be  settled 
by  it,  for  the  Court  took  time  for  advisement, 
and  subsequently,  as  the  report  says,  'affirmed 
the  conviction,  but  without  giving  their  reasons 
for  so  doing ; '  but  it  is  interesting  rather  by  rea- 
son of  the  discussion  between  the  judges  and  the 
counsel  during  the  argument.  Gaylor's  wife  had 
produced  her  own  death  by  voluntarily  taking  a 
drug  for  the  purpose,  as  she  supposed,  of  procur- 
ing an  abortion  upon  herself,  though  in  fact  she 
was  not  jDregnant.  The  prisoner  was  indicted, 
not  as  an  accessory  before  the  fact  to  her  murder, 
but  for  the  substantive  offence  of  manslaughter ; 
and  counsel  and  Court  both  indulged  in  interest- 
ing and  acute  queries  as  to  the  nature  of  the 
offences,  both  that  committed  by  the  wife  and 
that  by  the  liusband ;  and  various  speculations  as 
to  tlie  nature  of  the  offence  were  suggested.  The 
grounds  suggested  by  the  prisoner's  counsel,  upon 

1  Commonwealth  v.  Cbiovaro,  129  Mass.  494,  A.D.  1880. 


44  ODDITIES   OF  THE  LAW. 

which  the  Court  should  liohl  tliat  the  facts  in 
the  case  did  not  constitute  the  crime  of  man- 
slaughter were,  that  the  prisoner's  wife,  in  wilfully 
committing  an  unlawful  act  which  might  cause 
her  death,  and  which,  in  fact,  did  cause  her 
death,  was  a  felo  de  se,  and  therefore  guilty 
of  the  crime  of  murder;  and  also  that  the  facts 
proved  against  the  defendant  showed  him  to  be 
merely  an  accessory  to  the  crime  5  and  as  in  law 
there  could  be  no  such  offence  as  an  accessory 
before  the  fact  in  manslaughter,  no  offence  was 
charged.  It  was  evidenth'  a  case  of  novel  impres- 
sion, and  although  one  or  more  of  the  judges  were 
in  doubt  whether  the  doctrine,  as  laid  down  by 
Lord  Hale,  that  there  can  be  no  accessory  to 
manslaughter,  might  not  admit  of  some  qualifica- 
tion, under  peculiar  circumstances,  Ave  know  only 
that  the  prisoner  was  held  guilty  of  manslaughter, 
without  knowing  any  of  the  grounds  upon  which 
the  decision  was  based;  and  the  last  remark  of 
Pollock,  C.  B.,  was,  'You  have  not  satisfied  me, 
that,  as  far  as  the  woman  is  concerned,  she  has' 
been  guilty  of  any  offence  at  all.'  The  interrup- 
tions of  judges  in  the  course  of  an  argument  are 
not  adjudications." 

This  last  remark  is  true ,  still,  the  discussions 
between  the  bench  and  the  bar  during  an  argu- 
ment are  not  only  entertaining  and  instructive, 
but  the  ratio  decidendi   is  clearly  brought  out: 


ODDITIES   OF  THE  LAW.  45 

indeed,  in  most  cases,  these  discussions  are  so 
exhaustive,  that  there  is  seldom  any  judgment 
pronounced  at  length.  The  entry  is  simply  "  con- 
viction affirmed,"  or  "  conviction  quashed,"  as  the 
case  may  be. 

THERE  is  a  curious  case  in  Fortescue's  Re- 
ports, relating  to  the  privilege  of  peers,  in 
which  the  bailiff  who  arrested  a  lord  was  forced 
by  the  Court  to  kneel  down  and  ask  his  pardon, 
though  he  alleged  that  he  had  acted  by  mistake, 
for  that  his  lordship  had  a  dirty  shirt,  a  worn-out 
suit  of  clothes,  and  only  sixpence  in  his  pocket, 
so  that  he  could  not  believe  he  was  a  peer,  and 
arrested  him  through  inadvertence.^ 


SERGEANT  K.  having  made  two  or  three  mis- 
takes while  conducting  a  cause,  petulantly 
exclaimed,  "  I  seem  to  be  inoculated  with  dulness 
to-day."  —  "  Inoculated,  brother  ?  "  said  Erskine, 
"I  thought  you  had  it  in  the  natural  way." 


/milEF  JUSTICE  BUSHE,  on  being  told 
^-^  that  tlie  judges  in  the  Court  of  Common 
Pleas  liad  little  or  nothing  to  do,  remarked,  "Well, 
well,  they're  quite  equal  to  it." 

1  Lord  Mordiugtou's  Case,  Fort.  1G5. 


4G  ODDITIES   OF  THE  LAW. 

IN  a  case  in  Liber  Assissarum,  J.  ^yaR  indicted 
for  battery  of  R.  and  sued  K.  in  trespass  for 
the  same  battery :  plea,  son  assault  demesne,  and 
issue  thereon.  T.  H.  one  of  those  who  indicted 
(found  the  bill),  was  of  the  inquest  on  the  trial  of 
the  action  of  trespass,  and  gave  a  verdict  for  the 
plaintiff  with  twenty  shillings  damages;  and  T.  li. 
was  committed  to  the  custody  of  the  marshal,  and 
fined  for  two  causes,  one  of  whicli  was,  that  he 
was  one  of  the  indicters  of  the  said  J.  wliom  now 
he  has  acquitted,  and  did  not  challenge  himself.^ 


LORD  CLARE  one  day  brought  a  Newfound- 
land dog  upon  the  bench,  and  began  to 
caress  the  animal  while  Curran  was  addressing 
the  Court.  Of  course,  the  latter  stopped.  "  Go 
on,  go  on,  Mr.  Curran,"  said  his  lordship.  "  Oh ! 
I  beg  a  thousand  pardons,  my  lord,"  returned  the 
advocate :  "  I  really  thought  your  lordship  was 
employed  in  consultation." 


/^RABB  ROBINSON,  just  called  to  the  bar, 
V_V  told  Charles  Lamb  exultingiy  that  he  was 
retained  in  a  cause  in  the  King's  Bench.  "Ah," 
said  Lamb ;  "  the  first  great  cause,  least  under- 
stood." 

1  Lib.  Assis.  40  Eclw.  III.  f .  241,  A.  pi.  10.    8  Ad.  &  El.  834  note. 


ODDITIES   OF  TUE  LAW.  47 

LORD  KENYON  thus  addressed  a  dishonest 
butler  who  had  been  convicted  of  stealing- 
large  quantities  of  wine  from  his  master's  cellar: 
"Prisoner  at  the  bar,  you  stand  convicted,  on  the 
most  conclusive  evidence,  of  a  crime  of  inexpress- 
ible atrocity,  —  a  crime  that  defiles  the  sacred 
springs  of  domestic  confidence,  and  is  calculated 
to  strike  alarm  into  the  breast  of  every  English- 
man who  invests  largely  in  the  choicer  vintages  of 
Southern  Europe.  Like  the  serpent  of  old,  you 
have  stung  the  hand  of  your  protector.  Fortu- 
nate in  having  a  generous  employer,  you  might, 
without  dishonesty,  have  continued  to  supply  your 
wretched  wife  and  children  with  the  comforts  of 
sufficient  prosperity,  and  even  with  some  of  the 
luxuries  of  affluence ;  but  dead  to  every  claim  of 
natural  affection,  and  blind  to  your  own  real  in- 
terest, you  burst  througli  all  the  restraints  of  reli- 
gion and  moralit}^  and  have  for  many  years  been 
feathering  your  nest  with  3'our  master's  bottles." 


JEKYLL  one  day  received  an  invitation  to 
Lansdowne  House,  but  excused  liimself  by  a 
prior  engagement  to  meet  tlie  judges.  During 
the  dinner  a  part  of  the  ceiling  at  Lansdowne 
House  fell  in.  Jekyll  afterwards  described  liis 
escape  tlius:  "I  was  asked  to  7'uat  caelum,  but 
dined  instead  witli  fiat  justitia.^^ 


48  ODDITIES  OF  THE  LAW. 

A  MAN  having  been  convicted  of  bigamy 
before  Mr.  Justice  Maiile,  the  following 
dialogue  took  place  :  — 

Clerk  of  Assize.  What  have  you  to  say  why 
judgment  should  not  be  passed  upon  you  accord- 
ing to  law? 

Peisoner.  Well,  my  lord,  my  wife  took  up  with 
a  hawker,  and  ran  away  five  years  ago  ;  and  I  have 
never  seen  her  since,  and  I  married  this  woman 
last  winter. 

]\Ir.  Justice  Maule.  I  will  tell  you  what  you 
ought  to  have  done ;  and,  if  you  sa}^  you  did  not 
know,  I  must  tell  you  that  the  law  conclusively 
presumes  that  you  did.  You  ought  to  have  in- 
structed your  attorney  to  bring  an  action  against 
the  hawker  for  criminal  conversation  with  your 
wife.  That  would  have  cost  you  about  a  hun- 
dred pounds.  When  you  had  recovered  substan- 
tial damages  against  the  hawker,  you  should  have 
instructed  your  proctor  to  sue  in  the  Ecclesiastical 
Courts  for  a  divorce  a  mensa  et  thoro.  That 
would  have  cost  you  two  hundred  or  three  hundred 
pounds  more.  When  you  had  obtained  a  divorce 
a  mensa  et  thoro,  you  would  have  had  to  appear 
by  counsel  before  the  House  of  Lords  for  a  divorce 
a  vinculo  matrimonii.  The  bill  might  have  been 
opposed  in  all  its  stages  in  both  Houses  of  Parlia- 
ment, and  altogether  you  would  have  had  to  spend 
about    a    thousand   or   twelve    hundred    pounds. 


ODDITIES   OF  THE  LAW.  49 

You  will  probably  tell  me  that  you  never  had  a 
thousand  farthings  of  your  own  in  the  world;  but, 
prisoner,  that  makes  no  difference.  Sitting  here 
as  a  British  judge,  it  is  my  duty  to  tell  3'ou  that 
this  is  not  a  country  in  which  there  is  one  law  for 
the  rich,  and  another  for  the  poor. 


THE  following  is  an  extract  from  a  case  de- 
cided by  the  Supreme  Judicial  Court  of 
]\Iassachusetts.  The  facts  are  sufficiently  stated 
in  the  opinion,  wdiich  was  delivered  by  Mr.  Jus- 
tice Gushing  :  — 

"  Eliakim  Willis  was  pastor  of  the  parish  of 
Maiden;  a  bachelor,  or  a  widower  without  chil- 
dren :  a  devout  old  man  of  the  state  of  theological 
opinion  prevailing  at  the  close  of  the  last  century, 
when  Puritanism,  though  ceasing  to  be  exclusive, 
was  not  the  less  earnest  and  sincere.  He  was 
from  New  Bedford,  where  he  had  a  brother,  Eben- 
ezer  Willis,  still  living ;  and  he  retained  there,  as 
a  reminiscence  of  his  youth,  the  old  family  pew  in 
the  North  Meeting  House.  By  prudence  and  care 
he  had  economized  out  of  his  modest  salary  as  a 
country  clergyman  a  decent  estate,  consisting 
chiefly  of  land.  His  brothers,  Ebenezer  and  Jireh, 
were,  it  may  be  presumed,  reasonably  well  off;  for 
he  bequeathed  to  them  by  his  will  some  personal 
objects  only,  as  tokens  of  remembrance  and  affec- 


50  ODDITIES   OF  THE  LAW. 

tion.  He  had  a  widowed  sister,  Mercy  Marchant, 
for  whose  comfortable  support  through  life  lie  pro- 
vided. He  remembered  the  church  in  which  he 
had  so  long  ministered,  and  gave  to  it  his  favorite 
copy  of  the  Bible,  to  be  read  in  public  on  every 
Lord's  Day. 

"He  then  looked  around  for  some  object  of 
general  philanthropy  worthy  of  his  regard.  He 
doubted,  but  on  the  whole  came  to  a  Avise  con- 
clusion, and  resolved  to  make  a  donation  to  the 
Society  for  the  Propagation  of  the  Gospel  among 
the  Indians,  wdio,  he  might  have  reflected,  iiad  not 
been  over-well  treated,  either  by  England  or  by  her 
colonies  in  New  England.  As  to  family  connec- 
tions, he  had  a  favorite  niece,  who  had  passed 
through  her  romance  of  youth,  had  married,  and 
been  left  by  her  deceased  husband  a  widow,  with 
two  children,  but  without  property,  and  had  been 
invited  by  her  good  uncle  to  look  to  him  for  sup- 
port, and  probably  been  taken  into  his  family. 
Among  the  parishioners  of  Mr.  Willis  was  a  sub- 
stantial and  worthy  gentleman,  himself  a  widower, 
apparently  with  a  child  or  children.  Avery  natu- 
ral event  followed.  Col.  Popkin  married  the  still 
comely  widow  ;  and  a  tliird  family  grew  up  under 
the  eyes,  and  enjoying  the  affection,  of  'Mr.  Willis. 
Such  was  the  condition  of  the  family  when  the 
will  was  made. 

"  Mr.  Willis  looked  considerately  after  his  own 


ODDITIES   OF  THE  LAW.  51 

affairs,  but  consulted  Col.  Popkin,  and  was  ten- 
derly cared  for  b}*  his  niece,  Mrs.  Popkin.  They 
were  his  children  in  affection.  Accordingly,  in 
making  general  disposition  of  his  property,  he 
divided  the  bulk  of  it  equally  between  the  fruits, 
respectively,  of  the  first  and  second  marriages  of 
his  niece,  providing,  however,  that  she  should  have 
the  improvement  of  the  whole  estate  during  her 
natural  life.  But  here  doubts  as  to  the  law  came 
into  his  mind.  The  spectre  of  the  celebrated  rule 
in  Shelley's  Case  rose  before  him.  Perhaps,  for 
it  happened  during  his  life,  he  had  read  or  heard 
of  the  tribulation  and  perplexities  of  the  Earl  of 
Mansfield  in  the  case  of  Perrin  v.  Blake.  And 
accordingly,  after  making  the  devise  to  the  two 
sets  of  his  niece's  children,  with  reservation  of  a 
life  estate  in  his  niece,  he  added  the  following 
words :  '  If  it  is  not  contrary  to  the  laws  of  this 
Commonwealth  —  the  preceding  article  notwith- 
standing—  if  it  is  contrary,  this  item  I  hereby 
make  null  and  void,  so  as  in  no  way  to  affect  the 
other  items  of  this  my  last  will."  In  this  way  his 
niece  and  her  children  were  amply  considered, 
and  the  whole  office  of  gratitude  and  love  to 
them,  and  each  of  them  respective!}',  was  faith- 
fully performed  so  far  as  the  case  would  allow  it 
to  be  done."  ' 

1  Popkin  V.  Sargent,  10  Cash.  .132,  333. 


52  ODDITIES   OF  THE  LAW. 

IN  the  case  of  James  v.  CommonAvealth,  12  S. 
&  R.  220,  it  was  decided  that  the  ducking-stool 
is  not  the  punishment  of  a  common  scokl  in  Penn- 
sylvania. Mr.  Justice  Duncan  delivered  a  very 
lengtliy  and  amusing  opinion,  in  which  lie  ex- 
hausted the  entire  learning  on  the  subject.  We 
present  two  short  extracts ;  but  the  whole  opinion 
is  Avell  worthy  of  perusal.  "Now,  I  ask,"  he  says, 
"with  as  much  gravity  as  I  can  command,  if  jNlrs. 
Thrale  —  the  widow  of  the  great  brewer  Thrale, 
the  ricli,  learned,  accomplished,  and  fashionable 
Mrs.  Thrale  —  had  not  put  sufficient  malt  in  her 
liquor,  if  she  should  be  exposed  to  the  j)unishment 
of  the  cucking-stool,  and  be  ducked  in  stinking 
water;  or  if  the  celebrated  Dr.  Johnson  —  the  levia- 
than of  learning,  the  executor  of  ]Mr.  Thralo's  will 
—  had  broken  the  assize,  if  the  pillory  would  have 
been  his  punishment  ?  for  I  think  we  are  informed 
by  Mr.  Boswell  that  he  saw  him  in  the  brewery, 
attending  to  its  concerns,  and  bustling  about,  with 
his  inkhorn  tied  to  the  button  of  his  coat ;  or 
would  he  be  ducked  in  stercore,  for  Jacobs,  in  his 
Dictionary  informs  us  the  trebucket  was  a  punish- 
ment for  brewers  and  bakers,  who  were  ducked  in 
stercore,  or  in  stinking  water ;  and  we  must  never 
forget  that  the  law  professes  equality  of  punish- 
ment ;  that  the  common  law,  which  stamps  free- 
dom and  e(i[uality  upon  all  who  are  subject  to  it, 
Avhich  protects  and  punishes  with  an  equal  hand 


ODDITIES   OF  TUE  LAW.  53 

the  higli  and  the  low,  the  proud  and  tlie  humble, 
I  say  professes,  for  in  the  trebucket  punishment 
wt  shall  presently  see  that  it  was  never  intended 
for  the  rich,  and  never  was  inflicted  on  beauty  and 
youth." 

And  again,  at  p.  235 :  "  I  am  far  from  professing 
the  same  reverence  for  all  the  degrading  and  ludi- 
crous punishments  of  the  early  days  of  the  common 
law,  —  I  am  far  from  thinking  that  this  is  an  un- 
broken pillar  of  the  common  law,  or  that  to  re- 
move this  rubbish  would  impair  a  structure  which 
no  man  can  admire  more  than  I  do.  But  I  must 
confess  I  am  not  so  idolatrous  a  worshipper  as  to 
tie  myself  to  the  tail  of  this  dung-cart  of  the  com- 
mon law." 

SIR  FLETCHER  NORTON,  whose  want  of 
courtesy  was  notorious,  happened,  while 
pleading  before  Lord  Mansfield  on  some  question 
of  manorial  right,  to  say,  "  My  lord,  I  can  illus- 
trate the  point  in  an  instant  in  my  own  person. 
I  myself  have  too  little  manorsy  — "  We  all 
know  it.  Sir  Fletcher,"  interposed  the  judge  with 
one  of  his  blandest  smiles. 


SELF-DEFENCE  is  the  clearest  of  all  laws ; 
and  for  this  reason,  —  the  lawyers  didn't  make 
it.  —  Jboujlaa  Jerrold. 


54  ODDITIES   OF  THE  LAW. 

IN  a  verj  recent  case  a  learned  judge  thus 
suggestively  premises  his  opinion  :  "  The  full 
argument  of  counsel,  occupying  seventeen  entire 
dai/s,  and  an  examination  of  the  records,  have 
satisfied  me,"  etc.  It  has  been  well  said  that 
there  must  remain  some  humor  and  some  patience 
in  the  Fifth  Circuit.' 


^T'THEN  Daniel  O'Connell,  while  conducting  a 
^  '  case  before  Lord  Norbury,  observed,  "  Par- 
don, my  lord,  I  am  afraid  your  lordship  does  not 
apprehend  me,"  the  Chief  Justice  (alluding  to  a 
report  that  O'Connell  had  avoided  a  duel  by  sur- 
rendering himself  to  the  police)  retorted,  "  Par- 
don-me  also:  no  one  is  more  easily  apprehended 
than  Mr.  O'Connell  —  whenever  he  wishes  to  be 
■apprehended." 

IN  the  perusal  of  a  very  solid  book  on  ecclesias- 
tical law,  including  the  progress  of  the  ecclesi- 
astical differences  in  Ireland,  written  by  a  native 
of  that  country,  after  a  good  deal  of  tedious  and 
vexatious  matter,  the  reader's  complacency  is  re- 
stored by  an  artless  statement  how  an  eminent 
person  "abandoned  the  errors  of  the  Church  of 
Rome,  and  adopted  those  of  the  Church  of  Eng- 
land." 

1  Gaines  v.  Lizardi,  3  Woods  C.  C.  78, 


ODDITIES    OF    THE  LAW.  55 

"T  HEAR,"  said  somebody  to  Jekyll,  "  that  our 
-L  friend  Smith  the  attorney  is  dead,  and  leayes 
yery  few  effects."  —  "  It  could  scarcely  be  other- 
^yise,"  returned  Jekyll :  "  he  had  so  verj-  few 
causes." 

THE  following  is  a  specimen  of  Mr.  Justice 
JNIaule's  way  of  addressing  a  jury  :  — 
Gentlemen,  the  learned  counsel  is  perfectly 
right  in  his  law.  There  is  so7ne  eyidence  upon 
that  point.  But  he  is  a  lawyer,  and  you  are  not ; 
and  you  don't  know  Avhat  he  means  by  some 
eyidence,  and  so  I'll  tell  you.  Suppose  there  was 
an  action  on  a  bill  of  exchange,  and  six  people 
swore  they  saw  the  defendant  accept  it,  and  six 
others  swore  they  heard  him  say  that  he  should 
haye  to  pay  it,  and  six  others  knew  him  intimately, 
and  swore  to  his  handwriting.  And  suppose,  on 
the  other  side,  they  called  a  poor  old  man  who 
had  been  at  school  with  the  defendant  forty  years 
before,  and  not  seen  him  since,  and  he  said  he 
rather  thought  the  acceptance  was  not  his  writing: 
why,  there  Avould  be  some  eyidence  that  it  was  not. 
And  that  is  what  the  learned  counsel  means  in 
this  case. 


THE 
liar 


formality  of  the  law  is  the  prudery  of  a 

lot."  1 


1  riiilliiriorc  Ev.  20G. 


56  ODDITIES   OF  THE  LAW. 

"IV  /|~Y  client,"  said  an  Irish  advocate,  pleading 
-'-^-J-  before  Lord  Norbury  in  an  action  for 
trespass,  "is  a  poor  man.  He  lives  in  a  hovel, 
and  his  miserable  dwelling  is  in  a  forlorn  and 
dilapidated  state ;  bnt,  thank  God !  tlie  laborer's 
cottage,  however  rninous  its  plight,  is  his  sanctu- 
ary and  ins  castle.  Yes,  the  winds  may  enter  it, 
and  the  rain  may  enter  it ;  bnt  tlie  King  cannot 
enter  it.*'  —  "What,  not  the  reigning  king?"  in- 
quired his  lordship. 


/^  ILBERT  A  BECKETT  celebrated  his  ele- 
V-^  vation  to  the  office  of  maoistrate  at  the 
GreeuAvich  Police  Court  by  a  characteristic  pun. 
A  gentleman  came  before  him  to  prefer  a  charge 
of  robbery  with  violence,  committed  in  the  middle 
of  the  niglit.  In  stating  his  case  he  mentioned 
that  the  assault  occurred  Avhile  iie  was  retiu-ning 
liome  from  an  evening  part3^  The  worthy  magis- 
trate interrupted  him  by  observing,  "  Really,  sir,  I 
cannot  make  up  my  mind  to  accept  any  thing  like 
an  ex  parte  statement." 


N  Finch's  Law,  p.  220,  sorcery  is  tlius  defined : 
"  Sorcer}^  is  a  consulting  witli  devils,  and  con- 
taineth  under  it  conjuring,  necromancy,  and  such 
like." 


ODDITIES    OF  THE  LAW.  57 

A  BARRISTER  opened  a  case  very  confusedly 
before  jNIr.  Justice  Maule.  "  I  wish,  sir," 
interrupted  the  judge,  "yoii  wouhl  put  your  facts 
in  some  order :  cln^onological  order  is  the  best ; 
but  I  am  not  particular.  Any  order  you  like, — 
alphabetical  order." 

A  CURIOUS  case  is  reported  iii  the  Year  Book, 
4  Heiuy  VII.  5,  in  which  an  ecclesiastical 
chancellor,  Archbishop  Morton,  threatened  a  de- 
fendant with  punishment  in  the  next  world,  as 
the  common  law  could  not  reach  him  in  this.  The 
suit  was  against  an  executor  who  had  released  a 
debt  due  to  the  testator  without  the  assent  of  his 
coexecutor.  It  Avas  argued  that  the  law  gave  no 
remedy  against  such  an  act. 

Chancellor.  Sir,  I  know  well  that  every 
law  is,  or  of  light  ought  to  be,  according  to  the 
law  of  God ;  and  the  law  of  God  is  that  an  execu- 
tor who  is  of  evil  disposition  shall  not  expend  all 
the  property ;  and  I  know  well  that  if  he  does  so, 
and  does  not  make  amends,  or  is  not  willing  to 
make  restitution,  if  it  be  in  his  power,  he  shall 
be  damned  in  hell. 

A  PETITION  to  the  House  of  Lords  was  once 
rejected  for  omitting  the  word  "  humbly."  ^ 

1  40  Pari.  Dol.  1270. 


58  ODDITIES    OF   THE  LA]V. 

MRS.  J.  L.,  wlio  was  a  widuw  and  cliildless, 
aged  seventy-five,  within  a  few  days  after 
first  seeing  H.,  wlio  claimed  to  be  a  '•  spiritual 
medium,"  was  induced,  from  her  belief  that  she 
was  fulfilling  the  wishes  of  her  deceased  liusband, 
conveyed  to  her  through  the  medium  of  H.,  to 
adopt  him  as  her  son,  and  transfer  twenty-four 
thousand  pounds  to  him,  to  make  her  will  in  his 
favor,  afterwards  to  give  liim  a  further  sum  of 
six  thousand  pounds,  and  also  to  settle  upon  liim, 
subject  to  her  life-interest,  the  reversion  of  thirty 
thousand  pounds,  —  these  gifts  being  made  without 
consideration  and  without  power  of  revocation. 
Of  course  in  a  Court  of  Equity  these  voluntary 
gifts  were  set  aside. • 

Sir  G.  M.  Giffard,  V.  C. :  "I  have  to  observe 
that  the  system  of  '  spiritualism '  as  presented  by 
the  evidence  is  mischievous  nonsense,  well  calcu- 
lated, on  the  one  hand,  to  delude  the  vain,  the 
weak,  the  foolish,  and  the  superstitious ;  and  on 
the  other  to  assist  the  projects  of  the  needy  and  of 
the  adventurer ;  and  lastly,  that  beyond  all  doubt 
there  is  plain  law  enough  and  plain  sense  enough 
to  forbid  and  prevent  the  retention  of  acquisitions 
such  as  these  by  any  '  medium,'  whether  with  or 
without  a  strange  gift ;  and  that  this  should  be  so 
is  of  public  concern,  and,  to  use  the  words  of  Lord 
Hardwicke,  '  of  the  highest  public  utility.'  " 

1  Lyou  V.  Home,  L.  R.  6  Eq.  U55. 


ODDITIES   OF  THE  LAW.  59 

A  MAN  being  condemned  to  tlie  pillory  in 
or  abont  Elizabetli's  time,  the  foot-board  on 
which  he  was  ]ilaccd  proved  to  be  rotten,  and 
down  it  fell,  leaving  Jiim  hanging  by  tlie  neck  in 
danger  of  his  life.  On  being  liberated,  he  brought 
an  action  against  the  town  for  the  insufficiency  of 
its  pillory,  and  recovered  damages. 


A  GENERAL  principle  of  universal  applica- 
tion is  thus  tersely  expressed ;  "  A  contract 
in  one  place  makes  a  man  a  debtor  in  every  place." 
1  Saund.  7-1,  6th  ed. 


A  BAILIFF  who  had  been  compelled  to  swal- 
low a  writ,  rushing  into  Lord  Norbury's 
court  to  proclaim  the  indignity  done  to  justice  in 
his  person,  was  met  by  the  expression  of  a  hope 
that  the  writ  was  "  not  returnable  in  this  court." 


WHERE  a  party  has  tlie  power  to  consum- 
mate the  marriage  by  sexual  intercourse, 
Ijut  refuses  to  do  it,  this  is  not  im[)otency  ;  but  it 
is  d()iil)trul  whether  it  is  not  malicious  desertion, 
justifying  divorce.' 

1  The  caso  of  Southwick  v.   Southwick,  97  Mass.  327,  and 
Covvles  V.  Cowles,  112  Mass.  12'J8,  decide  that  it  is  not. 


60  ODDITIES   OF  THE  LAW. 

SIC  utere  tuo  ut  alieniim  non  laedas.  This 
maxim  was  once  discarded  unceremoniously 
by  Mr.  Justice  Erie.  "  The  maxim,"  he  said,  "  is 
mere  verbiage.  A  party  may  damage  property 
where  the  law  permits,  and  may  not  wliere  the 
law  prohibits  :  so  that  the  maxim  can  never  be 
applied  till  the  law  is  ascertained ;  and  when  it  is, 
the  maxim  is  superfluous."  ^ 


LORD  ABINGER  had  a  clear  way  of  putting 
a  point.  When  a  question  was  raised  by 
government  with  respect  to  the  right  of  persons 
to  take  water  from  Portsmouth  Harbor,  Lord 
Abinsfer  said :  "  An  old  woman  must  not  take  a 
bucket  of  water  from  that  harbor,  lest  a  seventy- 
four  should  not  float."  ^ 


IN  The  Case  of  Swans,  7  Rep.  16,  it  was  held  that 
the  swan  is  a  royal  fowl,  and  that  all  white 
swans  7iot  mai-ked,  which  have  gained  their  natural 
libert}',  and  are  found  swimming  in  an  open  and 
common  river,  ma}^  be  seized  to  the  King's  use  by 
liis  prerogative.  Whether  the  same  prerogative 
applies  to  black  swans  the  authorities  do  not  inform 
us. 

1  Bonorai  v.  Backhouse,  EL  Bl.  &  El.  643  ;  27  L.  J.  Q.  B.  388. 

2  Per  Aldersou,  B.  in  Embrey  v.  Owen,  15  Jur.  p.  030. 


ODDITIES   OF  THE  LAW.  61 

REX  V.  Johnson,  Comberbach,  377.  The  mar- 
ginal note  runs  thus :  "  Fine  on  indictment 
for  lying  with  another  man's  wife.  Q."  The 
report  states  that  "  The  defendant  appeared  to  be 
fined  upon  an  indictment  for  seducing  and  lying 
with  another  man's  wife.  Northy  moved  to  charge 
him  with  an  action;  but  the  Court  would  not  suffer 
that,  now  he  comes  to  submit  to  a  fine." 


IN  a  recent  case  in  Louisiana,  ]Mr.  Justice  Howe 
uses  the  following  lano-iiao-e  in  delivering  the 
judgment :  '•  We  need  in  criminal  matters  the 
'justice,  mercy,  and  truth'  of  the  common  law, 
and  not  its  'mint,  anise,  and  cumin.'  There  is 
no  more  need  that  the  State  of  Louisiana  should 
make  vain  repetitions  in  her  pleadings  than  there 
is  that  her  Christians,  should  make  them  in  their 
prayers."  ^ 

iN  the  preface  to  Fortescue's  Reports,  which 
consists  of  thirty-one  folio  pages,  Ave  are  in- 
formed tliat  "  The  grand  division  of  law  is  into 
the  divine  law  and  the  law  of  nature ;  so  that  the 
study  of  law  in  general  is  the  business  of  men  and 
angels.  Angels  may  desire  to  look  into  both  the 
one  and  the  other;  but  tliey  will  never  be  able  to 
fathom  the  depths  of  either." 

1  State  V.  Phelps,  24  La.  Ann.  402. 


62  ODDITIES   OF  THE  LAW. 

TN  The  Queen  v.  Ilaitnett,  Jcbb,  C.  C.  302,  the 
J-  judge  omitted,  in  pronouncing  sentence  on  a 
conviction  for  murder,  to  order  that  the  bodies  of 
tlie  prisoners  shoukl  be  buried  within  the  precincts 
of  the  jail,  as  directed  bj'  statute ;  but  on  a  subse- 
quent day,  on  ruling  the  book  at  the  close  of  the 
same  assizes,  in  the  absence  of  the  prisoners,  ordered 
the  above  clause  to  be  inserted.  It  was  held  by  a 
majority  of  the  judges  that  the  original  sentence  of 
death  was  illegal,  because  it  did  not  contain  an 
order  that  the  bodies  should  be  buried  within  the 
precincts  of  the  jail ;  that  the  statute  was  not 
merely  directory,  but  made  the  order  a  part  of  the 
seutence.     The  prisoners  were  dischaiged. 


IN  the  case  of  Drake  v.  State,  51  Ala.  30,  is  tliis 
note  in  the  margin  by  the  reporter:  "The 
reporter  does  not  believe  that  the  o[iinion  in  this 
case  was  intended  to  change  the  settled  rule  of 
law  as  laid  down  in  the  several  cases  cited,  and  he 
has  therefore  made  the  head-note  conform  to  those 
cases,  and  not  to  the  language  of  the  opinion." 


MR.  JUSTICE  INIAULE  once  asked,  "  What 
difference  is  there  between  '  discretion  '  and 
'  sound  discretion  ? '  "  i 

1  Regiua  v.  Dailiugtou,  G  Q.  B.  700. 


ODDITIES   OF  THE  LAW.  63 

"  rriHE  Albany  Law  Journal "  makes  mention 
-^  of  a  statute  of  New  York  which  allowed 
deductions  of  a  certain  number  of  days  to  be  made 
on  account  of  good  beliavior  from  the  term  of 
imprisonment  of  convicts,  witli  a  proviso  that  the 
statute  should  not  apply  to  any  person  sentenced 
for  the  term  of  Jiis  natural  life. 


^T7"E  see  that  works  of  nature  are  best  pre- 
^  T  served  from  their  own  beginnings,  frames 
of  policy  are  best  strengtliened  from  tlie  same 
ground  they  were  first  founded,  and  justice  is 
ever  best  administered  when  laws  be  executed 
according  to  their  true  and  genuine  institution.^ 


A  WITTY     reporter     writes    this    head-note : 
"  It  seems  that  a  married  man  intending  to 
effect  seduction  may  blunder  into  bigamy."  ^ 


LAWS  are  often  mere  notice-boards  set  up  in 
out-f)f-tlie-way  jjlaces  where  no  one  can  read 
tliom.  If  you  wish  to  keep  people  off  a  road,  close 
it  witli  a  barrier  that  stops  the  most  heedless  man 
at  tlie  very  entrance.  It  is  better  to  make  trespass 
impossible  tluin  forl)id  it.  —  Jouhert. 

1  rrcf.  to  8  Rep.  p.  xxvi.        2  Hayes  v.  People,  25  N.Y.  390. 


64  ODDITIES   OF  THE  LAW. 

PROFESSOR  CHRISTIAN  says  that  the 
description  of  law  given  by  Demosthenes 
is  perhaps  the  nearest  perfect  and  the  most  sat- 
isfactory that  can  be  found  or  conceived:^  — 

"The  design  and  object  of  hiws  is  to  ascertain 
wliat  is  just,  honoraljle,  and  expedient ;  and  wlicn 
that  is  discovered,  it  is  i)rochiimed  as  a  general 
ordinance,  equal  and  im})artial  to  all.  This  is  the 
origin  of  law,  Avhich,  for  various  reasons,  all  are 
under  an  obligation  to  obey,  but  especiall}'  because 
all  law  is  the  invention  and  gift  of  Heaven,  the 
sentiment  of  wise  men,  tlie  correction  of  every 
offence,  and  the  general  compact  of  the  State ;  to 
live  in  conformity  w^ith  which  is  the  duty  of  every 
individual  in  society."  ^ 


THERE  are  some  acts  of  justice  which  corrupt 
those  who  perform  them.  —  Joubert. 

1  1  Bl.  Comm.  44  note,  12th  etl. 

2  Cont.  Aristog.  I.  §  li).  Kennedy  translates  :  "  Laws  desire 
what  is  just  and  honorable  and  useful  ;  they  seek  for  this,  and 
when  it  is  found,  it  is  set  forth  as  a  general  ordinance,  the  same 
and  alike  for  all;  and  that  is  law,  which  all  men  ought  to  obey 
for  many  reasons,  and  especially  because  every  law  is  an  inven- 
tion and  gift  of  the  Gods,  a  resolution  of  wise  men,  a  corrective  of 
errors  intentional  and  unintentional,  a  compact  of  the  whole 
State,  according  to  which  all  who  belong  to  the  State  ought  to 
live."  Cf.  Hooker's  noble  description  of  Law,  in  Eccles.  Polit. 
I.  16,  8,  and  Church's  Notes,  p.  lo5,  where  he  compares  Dante, 
Paradi.  I.  104-121. 


ODDITIES   OF  THE  LAW.  65 

THE  absurdity  of  requiring  a  plurality  of  wit- 
nesses, except  in  cases  of  treason,  perjury, 
etc.,  is  illustrated  in  a  case  in  wliicli  a  husband, 
having,  with  a  female  servant,  found  his  wife  with 
her  paramour,  recovered  before  a  jury  five  hun- 
dred i)Ounds  damages  of  the  latter,  but  in  the 
Ecclesiastical  Court  was  refused  a  divorce  which 
was  prayed  for  upon  the  same  evidence.^ 


A  JUSTICE  of  the  peace  sends  the  servant  of 
L.  R.  to  the  house  of  correction  for  being 
saucy,  and  giving  too  much  corn  to  his  horses. 
The  Court  held  this  was  not  a  sufficient  cause  to 
send  a  man  to  the  house  of  correction.^  Accord- 
ing to  a  crown  case  reserved,  decided  long  after- 
wards, the  servant  might  have  been  committed  for 
larceny.3 

SHOWER  reports  a  case  of  sharp  practice,  in 
wliich  "the  attorney  and  counsel  botli  were 
cliecked  f(jr  this  snapping  practice ; "  and  they 
were  told  by  Scroggs,  Chief  Justice,  that  "since 
you  have  gone  so  vigorously  to  work,  we  will  use 
the  rigor  of  the  law  against  you."* 

1  Evans  v.  Evans,  1  Rolmrtson  Eccl.  IG.'j. 

2  The  King  v,  Okey,  8  Mod  A',. 

8  Tlic  King  V.  IMorfit,  Kus.s(;ll  &  Ryan  C.  C.  307. 
*  Ilarwood  v.  ■NVheeler,  2  Show.  7'J. 


66  ODDITIES   OF  THE  LAW. 

r^lUEF  BARON  POLLOCK  observed,  in  the 
^-^  course  of  the  argument  of  a  crown  case 
reserved :  "  The  word  '  indecently '  lias  no  definite 
legal  meaning  :  and  with  respect  to  tlie  word 
'presence,'  I  remember  that  in  our  older  courts 
of  justice  the  judge  retired  to  a  corner  of  the 
court  for  a  necessary  purpose,  even  in  tlie  pres- 
ence of  ladies.  That,  perhaps,  would  be  con- 
sidered indecent  now."  ^ 


TUSTICE  is  truth  in  action.  —  Jouhert. 


MR.  JOHN  MITCHELL  KE:\[BLE  once 
related,  that  among  other  illustrations  of 
ancient  tenures,  forest  rights,  etc.,  which  he  had 
picked  up  at  Addlestone,  was  the  custom  of  de- 
ciding how  far  the  rights  of  the  owner  of  land 
extended  into  the  stream  on  which  his  i)roperty 
is  situated  by  a  man  standing  on  the  brink  with 
one  foot  on  the  land,  and  the  other  in  the  water, 
and  throwing  a  tenpenu}^  hatchet  into  tlie  water : 
where  the  hatchet  fell  was  the  limit.  This  he  had 
learned  from  an  old  man  born  and  bred  in  the 
forest  who  remembered  having  once  seen  it  done.^ 

1  Retina  v.  "Webb,  2  C.  &  K.  938. 

2  The  Niueteenth  Century,  July,  1881,  p.  75. 


ODDITIES   OF  THE  LAW.  67 

NO  man  ought  to  fill  the  position  of  both  advo- 
cate and  judge  at  the  same  time  and  place. 
The  following  anecdote  sets  this  in  a  stronger 
light  than  any  discussion  of  the  subject.  Whilst  a 
prisoner  was  being  tried  before  a  commissioner, 
the  solicitor  for  the  defence  asked  his  counsel  to 
raise  some  frivolous  objection.  The  counsel  re- 
fused, on  the  ground  that  the  commissioner  would 
overrule  it.  The  solicitor  replied,  "  Oh  !  he  is  all 
right.     I  have  just  given  his  clerk  a  brief."  ^ 


MR.  JUSTICE  MAULE  was  in  the  act  of 
passing  sentence  upon  a  man,  when  the 
governor  of  the  county  jail  came  to  the  table  to 
deliver  some  calendars  to  members  of  the  bar, 
and  in  so  doing  passed  between  the  prisoner  and 
the  judge,  who  thereupon  intimated  to  the  gov- 
ernor that  in  so  doing  he  had  outraged  one  of  the 
best  known  conventional  rules  of  society.  "  Don't 
you  know,"  said  the  judge,  "you  ought  never 
jiass  between  two  gentlemen  when  one  gentleman 
is  addressing  another  ?  "  The  offender  against  this 
conventional  rule  apologized  and  retired,  where- 
upon the  judge  sentenced  the  other  gentleman  to 
seven  years'  transportation. 

1  Sir  James  Stephen,  in  The  Nineteenth  Century,  December, 
1877,  p.  744. 


68  ODDITIES    OF  THE  LAW. 

IN  an  action  to  recover  damages  for  an  illegal 
invasion,  by  imitation,  of  the  plaintiff's  trade- 
mark for  the  sale  of  a  certain  washing  powder, 
Mr.  Justice  Sanderson  gives  this  description  of 
the  plaintiff's  label :  — 

"  The  plaintiff's  label  commences  with  a  highly- 
colored  picture,  representing  a  washing-room  with 
tubs,  baskets,  clothes-lines,  etc.  There  are  two 
tubs  painted  yellow,  at  each  of  which  stands  a 
female  of  remarkably  muscular  dcveloimient,  with 
arms  uncovered,  and  clad  in  a  red  dress,  which  is 
tucked  up  at  the  sides,  exposing  to  view  a  red 
petticoat  with  three  black  stripes  running  around 
it  near  the  lower  extremit}''.  Each  is  apparently 
actively  engaged  in  washing ;  and  clouds  of  steam 
are  gracefully  rolling  up  from  the  tubs,  and  dis- 
persing along  the  ceiling.  In  the  background  is 
extended  across  the  room  a  clothes-line,  upon 
which  are  suspended  stockings  and  other  under- 
garments, which  have  evidently  just  been  put  to 
use  in  testing  the  cleansing  properties  of  the 
plaintiff's  washing  powder.  To  the  left  of  the 
washerwomen  stands  a  lady  in  a  yellow  bonnet, 
red  dress,  green  Congress  gaiters,  and  hoops  of 
ample  circumference ;  upon  her  left  arm  is  sus- 
pended a  yellow  basket;  and  in  her  left  hand, 
which  is  encased  in  a  red  glove,  is  held  a  red 
parasol ;  while  the  right,  which  is  encased  in  a 
green  glove,  is  gracefully  extended  towards   the 


ODDITIES    OF  THE  LAW.  69 

nearest  washerwoman  in  an  attitude  of  earnest 
entreaty.  In  the  immediate  foreground  is  a  yellow 
and  green  clothes-basket  full  of  dirty  linen,  and 
a  yellow  and  green  soap  packing-box,  upon  which 
are  printed  in  small  capitals,  the  words,  '  Stand- 
ard Co.'s  Soap.'  Each  washtub  is  supported  by 
a  four-legged  stool,  some  of  the  legs  being  yellow, 
some  red,  some  green,  and  some  all  three.  The 
floor  of  the  room,  as  to  color,  is  in  part  of  a  j^el- 
lowish  green,  and  in  part  of  a  greenish  red  ;  while 
the  walls  are  of  a  grayish  blue.  This  is  but  an 
imperfect  description  of  the  picture  with  which 
the  plaintiff's  label  is  adorned.  The  design  is 
good,  for  it  is  eminently  suggestive  of  the  charac- 
ter of  the  plaintiff's  goods." 

The  learned  judge  then  proceeds  to   give    an 
humorous  description  of  the  defendant's  labels.^ 


SIR  JOHN  NICHOLL,  in  pronouncing  judg. 
ment  in  one  case,  said  that  the  woman  was 
past  the  age  of  child-bearing  at  the  time  of  the 
marriage,  therefore  the  primary  and  most  legiti- 
mate object  of  wedlock,  the  procreation  of  issue, 
could  not  operate ;  and  a  man  of  sixty  who  mar- 
ries a  woman  of  fifty-two  should  be  contented  to 
take  her  tanquam  soror.^^  ^ 

1  Falkinburg  v.  Lucy,  -35  Cal.  52,  Gl. 

2  Brown  V.  Brown,  1  Ilagg.  Eccl.  523. 


70  ODDITIES   OF  THE  LAW. 

IN  a  celebrated  case,  Pollock,  C.  B.,  observed  r^ 
"•  We  have  had  in  this  county  no  Court  of 
Criminal  Equity  since  the  Star  Cliamber  was 
abolished,  as  Lord  Campbell  called  it,  in  a  case 
wliicli  was  tried  before  him.  "  ^ 


TN  Webb  V.  Weatherby,  1  Bing.  N.  C.  504, 
J-  counsel,  contending  that  a  replication  was  ill, 
urged  in  conclusion,  that  "  a  departure  from  forms 
so  long  cstablislicd  will  weaken  the  foundation 
and  shake  the  whole  fabric  f)f  the  law  of  England." 
Tindal,  C.  J.,  quietly  said:  "I  hope  the  law  of 
England  will  not  be  much  disturbed  if  we  over- 
rule this  demurrer." 


THE  marginal  note  to  Clement's  Case,  1  Lewin 
C.  C.  113,  runs  thus :  "  Possession  in  Scot- 
land evidence  of  stealing  in  England."  Tliis  is 
the  summary  of  a  case  of  horse-stealing  tried  at 
Carlisle,  the  evidence  being  that  the  horse  was  a 
few  days  afterwards  found  in  the  prisoner's  pos- 
session across  the  border ;  and  it  lias  been  made 
the  ground  for  much  gibing  by  tlie  English,  at 
the  acquisitive  propensities  of  tlieir  Northern 
brethren. 

1  Attorney  General  v.  Sillem,  2  H.  &  C.  500. 

2  Emperor  of  Austria  v.  Day,  3  DeG.  F.  &  J.  239. 


ODDITIES   OF  THE  LAW.  71 

LORD  ELDON  lent  two  large  volumes  of  pre- 
cedents to  a  friend,  and  could  not  recollect 
to  whom.  In  allusion  to  such  borrowers,  he 
observed,  that,  "  though  backward  in  accountingy 
they  seemed  to  be  practised  in  hook-keeping.''^ 


IT  may  be  a  consolation  to  the  bar  to  know  that 
many  years  ago  the  Court  of  Common  Pleas 
refused  to  hear  an  affidavit  read,  because  the 
barrister  therein  named  had  not  the  addition 
"  esquire  "  to  his  name.^ 


"rp 


HE  King  being  God's  lieutenant  cannot  do 
a  wrong."  — 11  Rep.  72  a. 


THERE  is  a  very  ancient  precedent  of  judges 
going  circuit.  "And  he  went  from  year  to 
year  in  circuit  to  Bethel,  and  Gilgal,  and  ^Mizjieh, 
and  judged  Israel  in  all  those  places."  —  1  Sam. 
vii.  16. 

— •-•-• —  « 

BY  the  Court :  "  You  cannot  change  your  attor- 
ney without  leave  of  Court,  to  be  obtained  on 
motion,  though  lie  be  ever  so  great  a  cheat."  ^ 

1  1  Wils.  245. 
a  7  Mod.  50. 


72  ODDITIES   OF  THE  LAW. 

IN  an  action  against  a  raihvay  company  for  per- 
sonal injury  to  a  passenger,  a  medical  prac- 
titioner of  eminence,  the  jury,  in  assessing  the 
damages,  may  take  into  their  consideration  the 
loss  lie  has  sustained  through  his  inability  to  con- 
tinue a  lucrative  professional  practice.^  At  the 
first  trial  the  jury  awarded  the  plaintiff  seven 
thousand  pounds  damages.  The  Queen's  Bench 
Division  directed  a  new  trial,  on  the  ground  of  the 
inadequacy  of  the  damages,  conceiving  that  the 
jury  had  failed  to  take  into  account  all  the  heads 
of  damage  in  respect  of  which  the  plaintiff  was  by 
law  entitled  to  compensation ;  more  especially  the 
pecuniary  loss  which  he  had  sustained  through  liis 
inability  to  practise  his  profession.^  The  decision 
of  the  Queen's  Bench  Division  was  affirmed  by  the 
Court  of  Appeal.^  At  the  second  trial  tlie  jury 
awarded  the  plaintiff  sixteen  thousand  pounds. 


ONE  of  the  Seven  was  wont  to  say  that  laws 
were   like    cobwebs ;  where   the   small  flies 
were  caught,  and  the  great  brake  tlu'uugh.'* 

1  Phillips  V.  London  &  South  Western  Railway  Co.  5  C.  P.  D. 
280. 

2  4  Q.  B.  D.  406. 
8  5  Q.  B.  D.  78. 

*  Bacon's  Apothegms,  No.  181.    Cf.  "Webster,  The  Famous 
History  of  Sir  Thomas  Wyat,  ed.  Dj-ce  1859,  p.  201:  — 

"  Great  men,  like  great  flies,  through  law's  cobwebs  break." 


ODDITIES   OF  THE  LAW.  73 

A  COUNSEL  thought  that  he  would  overcome 
Lord  Norbury  on  the  bench.  So  on  one  day 
when  Lord  Norbury  was  charging  a  jury,  and  the 
address  was  interrupted  by  the  braying  of  a 
donke}-:  "  What  noise  is  that?"  cried  Lord  Nor- 
bury. "'Tis  only  the  echo  of  the  Court,  my 
lord,"  answered  Counsellor  Readytongue.  Nothhig 
disconcerted,  the  judge  resumed  his  address ;  but 
soon  the  barrister  had  to  interpose  with  techni- 
cal objections.  While  putting  them,  again  the 
donkey  brayed.  "  One  at  a  time,  if  you  please," 
said  the  retaliating  joker. 


MAXIMS  are  to  the  intellect  what  laws  are 
to  actions :  they  do  not  enlighten,  but  they 
guide  and  direct,  and,  although  themselves  blind, 
are  protective.  They  are  like  the  clew  in  the 
labyrinth,  or  the  compass  in  the  night.  —  Jouhert. 


THERE  is  a  curious  anecdote  related  of  Sir 
Thomas  Moore.  He  one  day  invited  the 
judges  to  dine  with  him,  and  after  dinner  showed 
tliem  the  number  and  nature  of  the  cases  in  which 
he  had  granted  injunction  to  the  Courts  of  Com- 
mon Law.  The  judges,  upon  full  debate  of  the 
matters,  confessed  that  they  could  have  done  no 
othenvise  themselves. 


74  ODDITIES   OF  TUE  LAW. 

THE  St.  7  &  8  Geo.  IV.  cli.  30,  §  16  enacts 
that  "If  any  person  shall  unlawfully  and 
maliciousl}'  kill,  maim,  or  wound  miy  Ciittle,"  he 
shall  be  guilty  of  felony.  The  jnisoner  was  in- 
dicted under  this  statute  for  killing  a  gelding. 
Sir  Gregor}'  Lewin,  for  the  jDrisoner,  moved  in 
arrest  of  judgment,  and  contended  that  tlie  indict- 
ment ought  to  have  averred  that  the  gelding  was 
"  cattle."  He  referred  the  presiding  judge  to  Dr. 
Johnson's  definition  of  a  gelding,  viz.,  "  any  animal 
that  is  castrated^''''  and  to  the  following  well-laiown 
couplet  in  Hudibras  :  — 

"  The  sow-gelder  blew  his  horn 
To  geld  a  cat,  but  cried  reform." 

On  a  case  reserved,  the  indictment  was  held  to  be 
sufficient.^ 


THERE  is  an  amusing  story  told  of  Lord 
Camden,  when  a  barrister,  having  been  fas- 
tened upon  the  stocks  on  the  top  of  a  hill,  in 
order  to  gratify  an  idle  curiosity  on  the  subject. 
Being  left  there  by  the  absent-minded  friend,  who 
had  locked  him  in,  he  found  it  impossible  to  pro- 
duce his  liberation  for  the  greater  part  of  the  day. 
On  his  entreating  a  chance  traveller  to  release 
him,  the  man  shook  his  head  and  })asscd  on,  re- 
marking that  of  course  he  was  not  put  there  for 
nothing. 

1  Clark's  Case,  1  LeAvin  C.  C.  229,  232. 


ODDITIES   OF  THE  LAW.  75 

EEjMORSE  is  the  punishment  of  crime;  repent- 
ance, its  expiation.  The  former  appertains 
to  a  tormented  conscience  ;  the  hitter,  to  a  soul 
changed  for  the  better.  —  Jouhert. 


A  CERTAIN  :\Ir.  Nathaniel  Redding,  who  had 
formerly  practised  at  the  bar,  liad  been  con- 
victed before  justices  of  oyer  and  terminer,  by 
virtue  of  a  special  commission,  for  endeavoring  to 
persuade  a  witness  against  the  noblemen  impris- 
oned in  the  Tower  to  forbear  his  prosecution  of 
them.  For  this  offence  Mr.  Redding  was  set  in 
the  pillory,  and  fined  one  thousand  pounds,  with 
imprisonment  till  it  was  paid.  The  King  [Charles 
II.]  remitted  his  fine ;  and  when  discharged,  he 
came  into  court,  requiring  an  information,  at  his 
suit,  to  be  filed  against  the  commissioners  who  liad 
condemned  him :  "  of  whom,"  says  the  reporter 
(who  was  afterwards  successively  a  judge  in  each 
of  the  three  superior  courts),  "  my  brothers  Jones 
and  Dolben  were  Iavo."  The  Court  declared  him 
incompetent  to  do  so,  and  caused  his  words, 
accusing  the  two  judges  of  oppression,  to  be 
recorded;  and  then  "for  having  uttered  those 
words,  and  having  also  become  infamous  by  stand- 
ing on  the  piUory,  the  gentlemen  at  tlic  bar  did 
pray  that  his  r/oivn  mifjhb  he  pidlcd  over  his  ears; 
which  ivas  ordered  and  executed  in  co%irt :   and  he 


76  ODDITIES  OF  THE  LAW. 

was  also  condemned  in  court  to  pay  tlie  King  a 
fine  of  five  hundred  pounds,  and  be  imprisoned 
till  he  paid  it."  ' 

This  case  has  been  presented  to  the  reader 
because  of  the  singularity  of  its  circumstances.  It 
appears  to  be  also  the  only  instance  recorded  in 
our  books  of  misconduct  by  a  member  of  the  bar, 
judicially  cognizable,  and  punished  because  of  his 
being  such :  a  fact  of  itself  eloquently  significant. 


MR.  JUSTICE  MAULE,  in  summing  up  a 
case  of  libel,  and  speaking  of  a  defendant 
who  had  exhibited  a  spiteful  piety,  observed : 
"  One  of  tliese  defendants  is,  it  seems,  a  minister 
of  religion  :  of  ivliat  religion  dcjes  not  a2)pear  ;  Ijut 
to  judge  by  liis  conduct,  it  cannot  be  any  form  of 
Christianit}'." 


THE  reason  of  the  law  is  the  life  of  tlie  law ;  for 
though  a  man  can  tell  the  law,  yet,  if  he 
know  not  the  reason  thereof,  he  shall  soon  forget 
his  superficial  knowledge.  —  Co.  Litt.  183  b. 

1  Sir  Tlioinas  Raymond's  Reports,  \).  STfi,  licadoil  thus  : 
"  Memoranduin,  June  18,  1680."  "  He  seemed  to  complain 
much,"  adds  Raymond,  "for  not  being  allowed  a  writ  of  error 
to  reverse  his  judgment  before  the  commissioners."  .On  the  last 
day  of  term  his  fine  and  imprisonment  were  remitted  on  his 
petition  ;  a  recognizance,  howcA'er,  being  taken  for  his  good 
behavior. 


ODDITIES   OF  TUB  LAW.  77 

NIHIL  liabeat  forum  ex  scena  is  one  of  Bacon's 
maxims ;  but  he  there  refers  to  fictitious 
cases  brought  into  the  courts  in  order  to  deter- 
mine points  of  huy.^  Sergeant  Ma3'nard,  who  died 
in  the  reign  of  William  III.,  is  said  to  have  liad 
"  the  ruling  passion  strong  in  death  "  to  such  a 
degree,  that  he  left  a  will  purposely  worded  so  as 
to  cause  litigation,  in  order  that  sundry  questions 
which  had  been  "  moot  points "  in  his  lifetime 
might  be  settled  for  the  benefit  of  posterity. 


LORD  COKE  says  that  the  ofiicial  reporters 
ceased  about  the  end  of  the  reign  of  Henry 
VII. ;  and  the  reason  he  gives  for  it  is  sufficiently 
quaint :  "  So  as  about  the  end  of  the  reign  of 
Henry  VII.  it  v/as  thought  by  the  sages  of  the 
law  that  at  that  time  the  Reports  of  the  laAV  were 
sufficient,  wherefore  it  may  seem  unnecessary  and 
unprofitable  to  have  any  more  reports  of  the  law." 

—  3  Rep.  xxix. 

IN  the  comprehensive  words  used  by  the  Court 
in  6  jNiod.  231,  the  bail  have  the  principal 
always  upon  the  string,  and  \n\\y  pull  it  when  tliey 
please,    to    render    him    in    their    (jwn    discharge. 

—  8  Pick.  140. 

1  See  De  Augm.  Scient.  lib.  viii.  cap.  3,  ai)h.  01.   Works,  vol.  V. 
p.  107,  ed.  Ellis  and  Spedding. 


78  ODDITIES   OF  THE  LAW. 

PUNCH   ON   SPECIAL  PLEADING. 
INTEODUCTION. 

BEFORE  administering  law  between  litigating 
parties,  there  are  two  things  to  be  done,  in 
addition  to  the  parties  themselves,  —  namely,  first 
to  ascertain  the  subject  for  decision,  and,  secondly, 
to  complicate  it  so  as  to  make  it  difficult  to  decide. 
This  is  effected  by  letting  the  law3'ers  state  in 
complicated  terms  the  simple  cases  of  their  clients, 
and  thus  raising  from  these  opposition  statements 
a  mass  of  entanglement  which  the  clients  them- 
selves might  call  nasty  crotchets,  but  which  the 
lawyers  term  "nice  points."  In  every  subject  of 
dispute  with  two  sides  to  it,  tliere  is  a  riglit  and  a 
wrong ;  but  in  the  style  of  putting  the  contending 
statements,  so  as  to  confuse  the  right  and  the 
wrong  together,  the  science  of  special  i)leading 
consists.  This  system  is  of  such  remote  antiquity 
that  nobody  knows  the  beginning  of  it,  and  this 
accounts  for  no  one  being  able  to  appreciate  its 
end.  The  accumulated  chicanery  and  blundering 
of  several  generations,  called  in  forensic  language 
the  "  wisdom  of  successive  ages,"  gradually  brought 
special  pleading  into  its  present  shape,  or,  rather, 
into  its  present  endless  forms.  Its  extensive  drain 
on  the  pockets  of  the  suitors  has  rendered  it  always 
an  important  branch  of  legal  study ;  while,  when 


ODDITIES   OF  THE  LAW.  79 

properly  iinderstood,  it  appears  an  instrument  so 
beautifully  calculated  for  distributive  justice,  that, 
when  brought  to  bear  upon  property,  it  will  often 
distribute  the  whole  of  it  among  the  lawyers,  and 
leave  nothing  for  the  litigants  themselves. 

CHAPTER  I. 

OF  THE  PEOCEEDIXGS    IN  AX  ACTION,   FKOM   ITS  COILMEXCE- 
MEXT    TO   ITS   TERMINATION. 

Actions  are  divided  into  Heal,  in  which  there 
is  often  much  sham ;  Personal,  in  which  the  per- 
sonality is  frequently  indulged  in  by  counsel,  at 
the  expense  of  the  witnesses  ;  and  3Iixed,  in  which 
a  great  deal  of  pure  nonsense  sometimes  prevails. 
The  Legislature,  being  at  last  sensible  to  the  sham- 
ness  of  Real  and  the  pure  nonsense  of  Mixed 
actions,  abolished  all  except  four ;  and  for  the 
learning  on  these  subjects,  now  become  obsolete, 
we  must  refer  to  the  "books,"  which  have  been 
transferred  to  the  shops  of  Butter  from  the  shop 
of  Butterworth.^ 

There  are  three  superior  Courts  of  Common 
Law,  one  of  their  great  jjoints  of  superiority  being 
their  superior  expense,  which  saves  the  Common 
Law  from  being  so  common  as  to  be  positively 
vulgar ;  and  its  high  price  gives  it  one  of  the 
qualities  of  a  luxury,  rendering  it  caviare  to  the 

1  Butterwortli,  the  Law  PiiMisher  in  Fleet  Street. 


80  ODDITIES   OF  THE  LAW. 

million,  or  indeed  to  any  but  the  millionnaire. 
These  courts  are  the  Queen's  Bench,  —  a  bench 
which  five  judges  sit  upon ;  the  Exchequer,  whose 
sign  is  a  chess  or  draught  board,  some  say  to 
show  how  difficult  is  the  game  of  law,  while  others 
maintain  it  is  merely  emblematic  of  the  drafts  on 
the  pockets  of  the  suitor ;  and,  thirdly,  the  Com- 
mon Pleas,  which  took  its  title,  possibly,  from  the 
fact  of  the  lawyers  finding  the  profits  sucli  as  to 
make  them  un-Common-ly  Pleas'd. 

The  real  and  mixed  actions  not  yet  .ibolished 
are,  first,  the  Writ  of  Right  of  Dower,  and  second, 
the  Writ  of  Dower ;  both  relating  to  widows  :  but 
as  widows  are  formidable  persons  to  go  to  law 
against,  these  actions  are  seldom  used.  Tlie  third 
is  the  action  of  Quare  Impedit,  which  would  be 
brought  against  me  by  a  parson  if  I  kept  him  out 
of  his  living ;  but,  as  the  working  parsons  find  it 
difficult  to  get  a  living,  this  action  is  also  rare. 
The  fourth  is  the  action  of  Ejectment,  for  the 
recovery  of  land,  which  is  the  only  action  that  can- 
not be  brought  without  some  ground. 

Of  personal  actions,  the  most  usual  are  debt,  and 
a  few  others ;  but  we  will  begin  by  going  into 
debt  as  slightly  as  possible.  The  action  of  debt  is 
founded  on  some  contract,  real  or  su])posed  ;  and 
when  there  has  been  no  contract,  the  law,  taking 
a  contracted  view  of  matters,  will  have  a  contract 
implied.     Debt,  like  every  other  personal  action, 


ODDITIES   OF  THE  LAW.  81 

begins  with  a  summons,  in  whicli  Victoria  comes 
"  greeting  ;  "  Avhich  means,  according  to  Johnson, 
"  saluting  in  kindness,"  "  congratuhiting,"  or  "  pay- 
ing comi)liments  at  a  distance :  "  but,  considering 
the  unpleasant  nature  of  a  writ  at  all  times,  we 
cannot  help  thinking  that  the  word  "  greeting  "  is 
misapplied.  The  writ  commands  you  to  enter  an 
appearance  within  eight  days ,  and,  by  way  of 
assisting  you  to  make  an  ajDpearance,  the  writ 
invests  you,  as  it  were,  with  a  new  suit. 

The  action  of  Covenant  lies  for  breach  of  cove- 
nant, that  is  to  say,  a  promise  under  seal ;  and 
under  wafer  it  is  just  as  binding,  for  you  are 
equally  compelled  to  stick  to  it  like  wax. 

The  action  of  Detinue  lies  where  a  party  seeks 
to  recover  what  is  detained  from  him;  though  it 
does  not  seem  that  a  gentleman  detaining  a  news- 
paper more  than  ten  minutes  at  a  coffee-house 
would  be  liable  to  detinue,  though  the  action 
would  be  an  ungentlemanly  one,  to  say  the  least 
of  it. 

The  action  of  Trespass  lies  for  an  injury  com- 
mitted with  violence,  such  as  assault  and  battery, 
either  actual  or  implied;  as  if  A,  while  making 
pancakes,  throws  an  egg-shell  at  B,  the  law  will 
imply  battery,  though  the  egg-shell  was  empty. 

Tlie  action  of  Trespass  on  the  Case  lies  where 
a  party  seeks  damages  for  a  wrong  to  which  tres- 
pass will  not  apply,  —  where,  in  fact,  a  man  has 


82  ODDITIES   OF  THE  LAW. 

not  been  assaulted  or  luirt  in  his  person,  but 
where  he  has  been  hurt  in  tliat  tender  part,  liis 
pocket.  Of  this  action  there  are  two  species, 
called  assumpsit  —  by  which  the  law,  at  no  time 
very  unassuming,  assumes  that  a  person  legally 
liable  to  do  a  thing  has  promised  to  do  it,  liow- 
ever  unpromising  such  person  may  be — and  trover, 
which  seeks  to  recover  damages  for  property  which 
it  is  supposed  the  defendant  found  and  converted ; 
so  that  an  action  might  perhaps  be  brought  in  this 
form  to  recover  from  Poper}'  those  who  have  been 
found  and  converted  to  the  use,  or  rather  lost  and 
converted  to  the  abuses,  of  the  Romish  Church. 

Having  gone  slightly  into  the  different  forms  of 
actions ;  having  just  tapped  the  reader  on  the 
shoulder  with  a  writ  in  each  case,  which,  by  the 
way,  should  be  j^ersonally  served  on  him  at  home, 
though  the  bailiff  runs  the  risk  of  getting  some- 
times served  out,  we  shall  proceed  to  trial  —  per- 
haps of  the  reader's  patience  —  in  a  subsequent 
chapter. 

CHAPTER  II. 

OF   THE  DECLAKATIOX. 

The  writ  being  now  served,  it  is  next  to  be 
returned,  and  this  is  sometimes  done  by  giving  it 
back  at  once  to  the  bailiff,  or  throwing  it  in  his  face. 
Such  quick  returns  as  tliese  would  bring  such  very 
small  profit  to  a  plaintiff,  that  they  are  not  allow- 


ODDITIES   OF  TUE  LAW.  83 

able ;  and  the  writ  can  only  be  retnrned  by  the 
sheriff  bringing  it  back,  on  a  certain  day,  into  the 
superior  court.  He  then  gives  a  short  accoimt, 
in  writing,  of  tlie  manner  in  which  the  writ  has 
been  executed ;  but  if  the  bailiff  has  been  pumped 
upon,  as  we  find  reported  in  Shower,  or  pelted 
with  oysters,  as  in  Shelley's  Case,  or  kicked  down 
stairs,  as  he  was  in  Foot  against  the  Sheriff,  it  does 
not  seem  tliat  the  particulars  need  be  set  forth. 

If  the  defendant  does  not  appear  within  eight 
da^'S  after  the  writ  has  come  "greeting,"  as  if  it 
would  say  "  my  service  to  you,"  tlie  plaintiff  may, 
in  most  cases,  appear  for  him :  and  this  shows  how 
true  it  is  that  appearances  are  often  deceitful  and 
treacherous;  for,  when  a  plaintiff  appears  for  a 
defendant,  it  is  only  to  have  an  opportunity  of 
a^ipearing  against  liim  at  the  next  step. 

The  pleadings  now  commence,  which  were  origi- 
nally delivered  orally  by  the  parties  themselves 
in  open  court,  when  success  miglit  depend  on 
lengtli  of  tongue ;  but  tlie  parties  tliemselves 
l)eing  got  rid  of  in  the  modern  practice,  and  tlie 
lawyers  coming  in  to  represent  them,  success 
usually  depends  on  length  of  purse.  The  object 
of  pleading,  whether  oral  or  written,  is  to  bring 
the  parties  to  an  issue,  which  means  literally  a  way 
out ;  but  in  practice  the  effect  of  getting  plaintiff 
and  defendant  to  an  issue  is  to  let  them  both 
regularly  in. 


84  ODDITIES   OF  THE  LAW. 

Almost  all  pleas,  except  those  of  the  simplest 
kind,  must  be  signed  by  a  banister ;  who  d(jes  not 
iTSiially  draw  the  plea,  but  he  merely  draws  the 
half  guinea  for  the  use  of  his  name.  The  pleading 
begins  with  the  declaration,  in  which  the  plaintiff 
is  su})posed  to  state  the  cause  of  action,  but  in 
which  he  gives  such  an  exaggerated  account  of  his 
grievances  that  not  more  than  one-tenth  of  what 
he  states  is  to  be  believed.  For  example,  if  A  has 
had  his  nose  slightl}^  pulled  by  B,  the  former 
proceeds  to  say  that  "  the  defendant,  with  force 
and  arms,  and  with  great  force  and  violence, 
seized,  laid  hold  of,  pulled,  plucked,  and  tore,  and 
with  his  fists  gave  and  struck  a  great  many  vio- 
lent bloAvs  and  strokes  on  and  about  divers  parts 
of  the  plaintiff's  nose."  If  Jones  has  been  given 
into  custody  by  Smith,  without  sufficient  reason, 
and  Jones  brings  an  action  for  false  imprisonment, 
instead  of  saying  "  he  was  compelled  to  go  to  a 
station-house,"  he  declares  that  the  defendant, 
"with  force  and  arms,  seized,  laid  hold  of,  and 
with  great  violence  pulled  and  dragged,  and  gave 
and  struck  a  great  many  violent  blows  and  strokes, 
and  forced  and  compelled  him,  the  plaintiff^,  to  go 
in  and  along  divers  public  streets  and  highways, 
to  a  police  office;  whereby  the  plaintiff  was  not 
only  greatly  hurt,  bruised,  and  wounded,  but  Avas 
also  kept." 

If    Snooks's   dog    bites    Thomson's    pet    lamb, 


ODDITIES   OF  THE  LAW.  85 

Snooks  declares,  "  that  defendant  did  wilfully  and 
injuriously  keep  a  certain  dog,  he,  the  defendant 
well  knowing  that  the  said  dog  was  and  continued 
to  be  fierce  and  mad,  and  accustomed  to  attack, 
bite,  injure,  hurt,  chase,  worry,  harass,  tear,  agitate, 
wound,  lacerate,  snap  at,  and  kill  sheep  and  lambs ; 
and  that  the  said  dog  afterward,  to  wit,  on  tlie 
day  of  ,  and  divers  other  days,  did  attack  (etc. 
etc.  down  to)  and  kill  one  hundred  sheep  and  one 
liundred  lambs  of  the  plaintiff,  whereby  tlie  said 
sheep  and  the  said  lambs  (it  will  be  remembered 
there  was  only  one  lamb)  were  greatl}'  terrified, 
damaged,  injured,  hurt,  deteriorated,  frightened, 
depreciated,  floored,  flustered,  and  flabbergasted, 
to  the  damage  of  the  plaintiff  of  £  ,  and 
therefore  he  brings  his  suit." 

The  various  forms  of  declaration  are  so  numer- 
ous, that  the}'  fill  a  volume  of  seven  hundred  large 
pages  of  Chitty,  who  is  quite  chatt}-  on  this  dry 
subject,  so  much  does  he  find  to  say  with  regard 
to  it.  To  this  able  and  amusing  writer  we  refer 
those  wlio  are  curious  to  know  how  a  sclioolmaster 
ma}'  declare  for  "  work  and  labor,  care,  diligence, 
and  attendance  of  liimself,  bis  ushers  and  teach- 
ers, there  performed  and  bestowed  in  and  about 
tlie  teaching,  instructing,  boarding,  educating, 
hjdging,  flogging,  enlightening,  thrasliing,  wash- 
ing, whipping,  and  otherwise  soundly  im^iroving, 
divers  infants  and  persons."     These,  and  almost 


86  ODDITIES   OF  Tin-:  LAW. 

all  other  conceivable  causes  of  action,  are  dealt 
with  fully  in  the  pages  to  which  we  allude ;  and 
all  therefore  who  wish  the  treat  of  going  to  law 
are  referred  to  the  treatise  alluded  to. 


MR.  JUSTICE  MAULE  was  noted  for  split- 
ting straws  on  the  bench,  an  instance  of 
which  is  related  in  connection  with  special  demur- 
rers. A  man  was  described  in  a  plea  as  "  I. 
Jones ; "  and  the  pleader,  probably  not  knowing 
his  name,  referred  in  another  jiart  of  the  plea  to 
"  I  "  as  an  initial.  The  judge  said  that  there  was 
no  reason  why  a  man  might  not  be  christened 
"  I  "  as  well  as  Isaac,  inasmuch  as  either  could  be 
pronounced  alone.  The  counsel  for  the  plaintiff 
then  objected  that  the  plea  admitted  that  "  I  " 
was  not  a  name  by  describing  it  as  an  initial. 
"Yes,"  retorted  the  judge;  "but  it  does  not  aver 
that  it  is  not  a  Ji7ial  as  well  as  an  initial  letter." 


^T^ICE-CHANCELLOR  BACON  thus  dis- 
*  coursed  of  "  the  sublime  mysteries  of  special 
pleading,"  "the  days  of  which  are  numbered," 
said  he.  "For  probably  in  less  than  a  year  we 
shall  only  think  of  them  as  the  phantoms  of  the 
past  fabulous  ages." ' 

1  Job  V.  Poltou,  23  "W.R.  590;  L.R.  20  Eq.  94. 


ODDITIES   OF  THE  LAW.  87 

IN  North's  Life  of  Lord  Guilford  ^  is  this  account 
of  the  preface  to  Pollexfen's  Reports:  "By 
way  of  remark  to  show  how  faction  will  get  the 
better  of  common  sense  and  truth,  even  in  men 
great  pretenders  to  both,  I  must  add  that  Pollex- 
fen,  an  arguer  for  Sir  Samuel  Barnardiston,  since 
the  Revolution,  published  (or  fitted  for  the  press) 
a  book  of  reports,  as  they  are  called,  consisting 
chiefly  of  his  factious  arguments ;  and  particularly 
in  this  case  [Barnardiston  v.  Soame]  ;  but  most 
brazenly  and  untrul}'  in  his  preface,  tells  how  '  he 
had  carried  the  cause,  if  the  Lord  Chief  Justice 
North  had  not  solicited  the  judges  to  give  a  con- 
trary judgment '  —  or  to  that  effect.  This  book  and 
preface  was  shown  to  the  then  Lord  Chief  Justice 
Holt,  who  did  a  singular  piece  of  justice  to  his 
lordship's  memory  and  honor ;  for  he  sent  for  the 
bookseller  to  answer  it  before  him,  and  had  sup- 
pressed the  book,  if  he  had  not  promised  to  change 
the  preface,  and  leave  out  that  scandal  —  which 
was  done ;  but  some  copies  had  escaped  before." 


LORD  HALE  d(jubts  whether  voluntarily  and 
maliciously  infecting  a  person  of  the  plague, 
and  so  causing  his  death,  would  be  murder.  It  is 
hard  to  see  why.  He  says  tliat  "  infection  is  God's 
arrow."  —  1  Hale  P.  C.  432. 

1  Vol.  I.  !>.  110,  cd.  1826. 


88  ODDITIES   OF  THE  LAW. 

DURING  the  legal  al)sence  of  ]\Ir.  (afterwards 
Lord)  Campbell  on  his  matrimonial  trip 
with  the  ci-devant  Miss  Scarlett,  Mr.  Jnstice 
Abbott  observed,  Avhen  a  cause  was  called  on  in 
the  Court  of  King's  Bench,  "  I  thought,  Mr. 
Brougham,  that  Mr.  Campbell  was  in  the  case."  — 
"  Yes,  my  lord,"  replied  Mr.  Brougham,  with 
that  sarcastic  look  peculiarly  his  own ;  "  he  was, 
my  lord ;  but  I  understand  he  is  ill." —  "  I  am  very 
sorry  to  hear  that,"  said  the  judge.  "  My  lord," 
replied  Mr.  Brougham,  "  it  is  whispered  that  the 
cause  of  my  learned  friend's  absence  is  the  scarlet 
fever.^'' 

IT  seems  that  any  person  is  liable  to  be  com- 
mitted to  prison  for  his  lifetime  by  the  Court 
of  Chancery,  as  guilty  of  contempt  of  court,  for 
not  j)aying  that  which  he  has  not  to  pay,  and  for 
not  doing  other  impossibilities.  What  a  number 
of  j)eople  might  be  committed  for  contempt  of 
the  Court  of  Chancery  if  we  all  expressed  our 
feelings  ! 


LORD  BACON  writes  of  "inconsistency  of 
judgments :  "  "  If  it  be  that  previous  decis- 
ions must  be  rescinded,  at  least  let  them  be 
interred  with  honor."  ^ 

1  De  Augmentis,  Lib.  VIII.  aph.  95.    Judicia  enim  reddita,  si 
forte  rescindi  necesse  sit,  saltern  sepeliuntor  cum  honore. 


ODDITIES   OF  THE  LAW.  89 

ABOUT  the  year  1803  Lord  Eldon,  C,  directed 
an  issue  to  be  tried  in  a  court  of  law  for  the 
purpose  of  having  the  parties  themselves  examined 
in  respect  of  certain  transactions  in  a  bankruptcy 
suit.  Mr.  (afterwards  Lord)  Erskine  was  retained 
for  the  plaintiff,  who  had  large  pecuniary  interests 
at  stake,  and  jNIr.  (afterwards  Baron)  Garrow  for 
the  defendant.  The  plaintiff  was  called  in  to  the 
consultation,  and,  on  his  entrance,  Mr.  Erskine 
sternly  addressed  to  him  the  following  words: 
"  Sir,  if  3-0U  do  not  wish  to  go  to  hell,  you  must 
withdraw  your  record !  "  It  was  withdrawn  forth- 
with.i 


y  ORD  ERSKINE,  in  a  letter  to  Lord  Stowell, 
-*-^  in  1821,  relating  to  a  judgment  of  the  latter 
in  the  Court  of  Admiralty  in  a  case  of  collision  at 
sea,  thus  speaks  of  Lord  Kenyon  :  — 

"  I  remember  my  excellent  friend,  the  late  Lord 
Kenyon,  one  of  the  best  and  ablest  judges  and  the 
soundest  lawyer,  in  trying  a  cause  at  Guildhall, 
seemed  disposed  to  leave  it  to  the  jury  whether 
the  party  who  suffered  might  not  have  saved  him- 
self by  going  on  the  wrong  side  of  the  road,  where 
the  witnesses  swore  that  ample  room  was  left. 
Tlic  answer  to  which  is  the  dangerous  uncertainty 

1  This  aiif^cdote  was  related  to  the  late  Mr.  Saiimcl  Warren  by 
a  friend  wlio  was  |)rofessionally  couceriied  iu  the  cause.  Warreu 
Law  Studies,  II.  417  note,  3d  ed. 


90  ODDITIES   OF  THE  LAW. 

of  such  an  attempt,  destructive  of  all  the  pre- 
sumptions of  conduct  founded  upon  law.  Observ- 
ing that  Lord  Kenyon  was  entangled  with  this 
distinction,  from  his  observations  in  the  course  of 
the  evidence,  I  said  to  the  jury,  in  stating  the 
defendant's  case :  "  Gentlemen,  if  the  noble  and 
learned  judge,  in  giving  you  hereafter  his  advice 
and  opinion,  shall  depart  from  the  only  principle 
of  safety  (unless  where  collisions  are  selfish  and 
malicious)  and  you  shall  act  upon  it,  I  can  only 
say  that  I  shall  feel  the  same  confidence  in  his 
lordship's  general  learning  and  justice,  and  shall 
continue  to  delight,  as  I  always  have  delighted,  in 
attending  his  administration  of  justice  ;  but  I  pray 
God  that  I  may  never  meet  him  on  the  road.'''' 
Lord  Kenyon  laughed,  and  the  jury  along  with 
him ;  and  when  he  came  t^^  sum  up  he  abandoned 
the  distinction,  saying  co  tije  jury  that  he  believed 
it  to  be  the  best  course  dare  super  antiquas  vias.^ 


IN  a  recent  case,  the  Supreme  Court  of  the 
United  States  animadvert  upon  the  practice 
of  introducing  children  as  v/itnesses  in  an  angry 
family  quarrel,  Mr.  Justice  Wayne  quaintly  say- 
ing that  "  it  cannot  be  done  without  its  being  con- 
sidered as  a  forlorn  effort  of  parental  obliquity."  ^ 

1  Life  of  Lord  Kenj-on  p.  345. 

2  Toby  V.  Leonards,  2  "Wallace,  438. 


ODDITIES   OF  TUB  LAW.  91 

NO  better  statement  of  the  use  of  Abridgments 
has  been  given  than  that  contained  in 
"  Studii  Legalis  Ratio,"  p.  119,  A.D.  1675 :  "  As 
for  the  Abridgments,  though  they  are  of  great 
use  as  Lord  Coke  saith  Compendia  sunt  dispendia. 
Abridgments  in  some  cases  mistaking  the  state 
and  truth  of  the  question,  and  sometimes  the  right 
reason  and  rule  of  the  case,  are  utterly  mistaken. 
Therefore  Satius  est  petere  fontes  quam  sectari 
rivulos .  it  is  better  and  safer  sailing  in  the  main 
sea  than  in  rocky  havens.  When  the  whole  case 
is  set  down  at  large,  with  all  the  circumstances 
and  reasons  of  either  side,  the  point  in  question  is 
easily  apprehended,  and  many  rules  of  law  col- 
lected by  inference,  which  out  of  an  abridged  case 
cannot  be  done." 

""VyiHIL  quod  est  inconveniens  est  licitum  is  a 
-L^  legal  maxim ;  that  is,  in  the  language  of  a 
learned  lawyer,  "  it  is  better  that  damage  should 
be  incurred  than  that  injustice  should  be  perpe- 
trated ; "  for  so  he  interprets  the  literal  maxim, 
"  The  law  will  sooner  suffer  a  mischief  than  an 
inconvenienced  ^  The  substance  of  the  matter  is 
that  the  law  will  tolerate  the  existence  of  a  partic- 
ular, rather  than  establish  a  general,  injustice : 
since  Salus  populi,  suprema  lex. 

1  Davis  V.  Waddington  7  M.  &  G.  41  uoto  by  Sergeant  Man- 
ning. 


92  ODDITIES   OF  THE  LAW. 

MR.  JUSTICE  COLERIDGE,  in  the  main- 
tenance of  the  principle  that  even  to  the 
representatives  of  the  people,  the  House  of  Com- 
mons, the  most  powerful  body  in  the  nation,  the 
calumny  of  its  individuals  is  forbidden,  said:  "I 
soberly  ask  the  warmest  advocate  for  this  extend- 
ed privilege,  whether  any  benefit  in  a  land  all  the 
institutions  of  which  seek  the  genial  sunshine  of 
public  opinion,  and  must  languish  without  it,  can 
make  up  for  the  injury  resulting  from  this,  that  it 
should  be  capable  of  being  said  with  truth  the 
House  of  Commons  has  become  a  trader  in  books, 
and  claims  as  privilege  a  legal  monopoly  in  slan- 
der r  1 


THE  old  notion  that  a  corporation,  "  having  no 
soul,"  was  incapable  of  malicious  intentions, 
was  recently  disregarded  as  "  quaint  "  and  unsub- 
stantial ;  and  it  was  held,  that,  in  case  of  a  wilful 
and  intentional  wrong,  an  action  of  tort  is  main- 
tainable against  a  corporation  where  the  act 
complained  of  is  within  the  purpose  of  the  incor- 
poration, and  it  has  been  done  in  such  a  manner 
as  that  it  would  constitute  an  actionable  wrong  if 
done  by  a  private  individual.'^ 

1  Judgment  in  Stockdale  v.  Hansard,  2  P.  &  D.  218;  9  A.  &  E. 
243. 

2  Green  v.  Loudon  General  Omnibus  Co.  29  L.  J.  N.  S.  13 
C.  P. 


ODDITIES   OF  THE  LAW.  93 

"  rr^HE  Common  Law  jurisdiction,"  says,  in 
J-  glowing  terms,  an  able  writer  on  Equity, 
"  is  cribbed  and  confined  in  its  operation  in  respect 
of  fraud,  and  does  not  penetrate  beyond  the  sur- 
face ;  while  Equity  extends  its  relief  to  meet  almost 
every  variety  of  legal  subterfuge  in  all  its  windings 
and  ramifications,  and  tracks  a  covinous  defendant 
into  the  profoundest  recesses  of  his  lair."  * 


'TT'^O  beguile  the  Court,  or  the  party  ...  is  an 
-L  artificial  deceit,  of  all  others  the  worst ;  for 
hereby  the  matter  is  so  tricked,  shadowed,  and 
heightened  by  color  of  painted  art  as  thereby  the 
judges  themselves  are  abused  and  beguiled."  — 
2  Inst.  215. 


IN  the  case  of  The  King  v.  The  Warden  of  the 
Fleet,  12  Mod.  340,  it  was  objected  to  a  wit- 
ness that  he  had  been  convicted  of  common  bar- 
ratry, and  a  record  of  his  conviction  was  produced, 
which  showed  that  he  had  been  fined  one  hundred 
l)0unds.  Holt,  C.  J.,  said :  "  If  he  had  had  the 
Ijandling  of  liim,  he  had  not  escaped  the  pillor}^ 
and  that  he  remembered  Sergeant  Maynard  used 
to  say  it  were  better  for  the  country  to  be  rid  of 
one  barrator  than  of  twenty  liighwaymen." 

1  Smith  Eq.  159. 


94  ODDITIES   OF  THE  LAW. 

HERE  is  an  instance  of  Lord  Lyndhurst's  good 
nature.  When  Cleave  the  newsvender  was 
tried  in  the  Court  of  Exchequer  on  a  govern- 
ment information,  he  conducted  his  own  case, 
and  was  treated  with  much  indulgence  b}-  Lord 
Lyndhurst  the  judge.  Cleave  began  his  defence 
by  observing  that  he  was  afraid  he  should,  l)efore 
he  sat  down,  give  some  rather  awkward  illustra- 
tions of  the  truth  of  the  adage  that  "  he  who  acts 
as  his  own  counsel  has  a  fool  for  his  client."  — 
"Ah,  Mr.  Cleave,"  said  his  lordship  with  great 
pleasantry,  "  ah,  Mr.  Cleave,  doji't  you  mind  that 
adage  :  it  was  framed  b}-  the  lawyers^ 


"  A  CURSORY  and  tumultory  reading,"  says 
-lA^  Lord  Coke,  "doth  ever  make  a  confused 
memor}',  a  troubled  utterance,  and  an  uncertain 
judgment."  ^  The  acquisition  of  learning  will 
serve  but  little  purpose,  unless  it  be  permanently 
and  serviceably  retained.  "  What  booteth  it  to 
read  much^''  asks  old  Philipps,  "  which  is  a  weari- 
ness to  the  flesh;  to  meditate  often,  which  is  a 
burthen  to  the  mind ;  to  learn  daily  with  increase 
of  knowledge ;  when  he  is  to  seek  for  what  he 
hath  learned,  and  perhaps,  then  especially,  when 
he  hath  most  need  thereof?  Without  this,  our 
studies  are  but  lost  labor."  ^ 

1  6  Eep.  Preface.        2  studii  Legalis  Ratio,  15,  A.D.  1G75. 


ODDITIES   OF  THE  LAW.  95 

IN  Lord  Campbell's  account  of  tlie  Oxford  cir- 
cuit, A.D.  1810,  are  the  following  sketches :  ^ — 

"  The  man  of  highest  rank  upon  the  circuit  was 
Williams,  a  king's  sergeant,  the  editor  of  '  Saun- 
ders/ Although  a  very  learned  man,  he  was  a 
poor  advocate,  and  was  never  employed  except  in 
Grimgrihher  cases,  depending  on  the  law  of  real 
property.  In  one  of  these  a  question  arose  re- 
specting the  operation  of  a  recovery ;  and  the  ser- 
geant laid  down  a  position  which  Mr,  Justice 
Lawrence,  a  most  learned  judge,  doubted.  But 
instead  of  reasoning,  or  citing  cases  to  support  it, 
the  learned  sergeant  only  said,  '  I  assure  you,  my 
lord,  it  is  so,  —  upon  my  honor  it  is  so ; '  and  Law- 
rence yielded  to  the  authority. 

"  The  first  in  junior  business  was  Abbott,  after- 
wards Chief  Justice  of  England.  He  was  then  of 
no  mark  or  likelihood,  or  supposed  to  be  capable 
of  being  more  than  a  puisne  judge,  an  ap})oint- 
ment  to  which  he  had  a  kind  of  prescriptive  claim, 
from  having  been  long  '  Chief  Devil  to  the  Attor- 
ney General,'  or  '  Counsel  to  the  Treasury,'  and 
having  drawn  the  indictments  for  high  treason 
against  Hardy,  Tooke,  and  Thelwall.  He  was 
tlie  very  worst  hand  at  addressing  a  jury  I  ever 
knew  to  attemi^t  it.  He  was  fully  aware  of  this 
defect,  and  oidy  hazarded  the  effort  with  great 
reluctance  in  tlie  absence  of  liis  leader,  or  when, 

1  Life  of  Lord  Campbell,  vol.  I.  pp.  249-251, 


96  ODDITIES   OF  THE  LAW. 

all  the  silk  gowns  being  retained  on  the  same  side, 
they  were  forced  to  give  him  a  leading  brief  on 
the  other.  I  remember  one  such  occasion,  on  the 
trial  of  a  great  quo  warranto  cause,  when  he  had 
spoken  near  two  hours,  and  was  about  to  sit  down, 
a  barrister  present,  who  thought  he  was  all  the 
time,  in  his  usual  vocation  of  junior,  making  a 
formal  statement  of  the  questions  to  be  tried,  pre- 
paratory to  the  speech  of  the  leader,  exclaimed  in 
my  ear,  '  What  a  monstrous  time  Abbott  is  in  this 
case  in  opening  the  pleadings ! '  But  his  powers 
expanded  as  he  was  elevated,  and  he  became  one 
of  the  best  judges  who  ever  presided  in  the  Court 
of  King's  Bench,  not  only  laying  down  the  law 
with  precision  and  accuracy,  but  enforcing  his 
opinion  with  coj)iousness  of  illustration,  and  ele- 
gance of  diction." 

IF  the  dignity  of  the  law  is  not  sustained,  its  sun 
is  set,  never  to  be  lighted  up  again.^ 


IN  Wharton's  Case,  Yelv.  24,  which  was  an 
indictment  for  murder,  the  jur}^  returned  a 
verdict  of  not  guilty.  "  Wherefore  Popham, 
Gawd}^,  and  Fenner  fuerunt  valde  irati,  and  all 
the  jurors  were  committed  and  fined,  and  bound 
to  their  good  behavior,"  etc. 

1  Per  Lord  Erskine  in  Burdett  x.  Abbott,  5  Dow,  202. 


ODDITIES  OF  THE  LAW.  97 

THE  most  trifling  and  ridiculous  civil  injuries 
to  members  of  the  House  of  Commons,  even 
trespasses  committed  upon  their  servants,  though 
on  occasions  unconnected  with  the  discharge  of 
any  parliamentary  duty,  have  been  repeatedly  the 
subject  of  inquiry  under  the  head  of  privilege-. 
But  there  is  one  instance  of  abuse  which  goes 
further  than  all  the  rest.  A  member's  servant 
was  committed  as  the  father  of  a  Imstard :  the 
House  of  Commons  held  he  was  entitled  to 
privilege  of  Parliament,  and  a  discussion  ensued 
whether  lie  or  the  constable  was  to  pay  the  costs. 

The  instance  of  a  citizen  being  committed  by 
the  House  of  Lords  for  calling  the  badge  of  a 
swan  on  a  noblemau's  waterman  a  goose,  is  well 
known.' 


"  rp^HERE  is  no  calling  witnesses  without  facts  ; 
-L    there  is  no  making  a  defence  without  inno- 
cence ;  there  is  no  answering  evidence  which  is 
true."  2 


"/^NE  book,"  says  Phillips,  "well  digested,  is 
^^  better  than  ten  hastily  slumbered  over."  — 
Studii  Legalis  Ratio,  p.  188. 

1  Cited  in  tlie  argument  in  Stockdale  v.  Hansard,  2  P.  &  D. 
103. 

2  Lord  Mansfield,  arg.  wlien  Solicitor  General,  in  the  proceed- 
ings against  Lord  Lovat  for  treason,  18  Howell  State  Trials,  812, 
A.D.  174G. 


98  Oddities  of  the  law. 

"  "TTTHEN  a  learned  man  dies,"  said  the  Mas- 
'  ^  ter  of  the  Temjjle,  at  the  grave  of  the 
great  jurisconsnlt,  John  Seklen,  in  1654,  in  the 
Temple  Chnrcli,  — "  when  a  learned  man  dies, 
much  learning  dies  with  him  ;  "  adding,  "  If  learn- 
ing could  have  kept  a  man  alive,  our  brother  had 
not  died."  ^ 


SAT  cito,  si  sat  bene.  "  Quick  enough,  if  safe 
enough."  This  motto  was  a  favorite  maxim 
with  Lord  Eldon,  who  says,  "  In  all  I  have  had  to 
do  in  future  life,  professional  and  judicial,  I  have 
always  felt  the  effect  of  this  early  admonition,  on 
the  panels  of  the  vehicle  which  conveyed  me  from 
school,  '  Sat  cito,  si  sat  bene.'  "  ^ 


THE  King  v.  Dangerfield.^  The  defend- 
ant was  convicted  of  publishing  a  libel, 
wherein  he  had  accused  the  King,  when  Duke  of 
York,  that  he  had  hired  him  to  kill  the  late  King 
Charles,  etc.  And  on  P'riday,  June  20,  1685,  he 
was  brought  to  the  bar,  wliere  he  received  this 
sentence,  viz.  That  he  should  pay  a  fine  of  five 
hundred  pounds;  that  he   should  stand  twice  in 

1  Wood  Athenae  Oxonienses,  vol.  II.  p.  134.    Fol.  Loudon: 
1721. 

2  Twiss,  Life  of  Lord  Eldon,  vol.  I.  pp.  34,  35,  Amer.  ed. 
8  3  Mod.  68. 


ODDITIES   OF  TUE  LAW.  99 

the  pillory,  and  go  about  tlio  Hall  with  a  paper  in 
his  hat  signifying  his  crime ;  that  on  Thursday 
next  he  should  be  whipped  from  Aldgate  to  New- 
gate, and  on  Saturday  following  from  Newgate  to 
Tyburn ;  which  sentence  was  executed  accordingly. 
As  he  was  returning  in  a  coach  on  Saturday 
from  Tyburn,  one  Mr.  Rcbert  Frances,  a  barrister 
of  Gray's  Inn,  asked  him  in  a  jeering  manner 
whether  he  had  run  his  heat  that  day.  He 
replied  to  him  in  scurrilous  words.  Whereupon 
Mr.  Frances  run  him  in  the  eye  with  a  small  cane 
which  he  had  then  in  his  liand,  of  which  wound 
the  said  ]Mr.  Dangerfield  died  on  the  Monday  fol- 
loMdng.  ]Mr.  Frances  was  indicted  for  this  mur- 
der ;  and,  upon  not  guilty  pleaded,  was  tried  at 
the  Old  Bailey,  and  found  guilty,  and  executed 
at  Tyburn  on  Friday,  July  the  24th,  in  the  same 
year.  ^^^ 

A  NOTEWORTHY  observation  fell  judicially 
from  Lord  Eldon :  "  Upon  that  occasion 
Lord  Cliief  Justice  De  Grey,  in  his  most  luminous 
judgment  said,  he  never  liked  Equity  so  well  as 
when  it  was  like  Lmv.  The  day  before,  I  had  hoard 
Lord  jNIansfield  say  lie  never  liked  Law  so  well  as 
when  it  was  like  E(piity :  remarkable  sayings  of 
these  two  great  men,  which  made  a  strong  impres- 
sion on  my  memory."  ^ 

1  Lord  Uursley  v.  Fitzhardinge  Berkeley,  G  Vcs.  200. 


100  ODDITIES   OF  THE  LAW. 

THE  following  story  is  told  as  illustrative  of 
the  law's  delay.  When  the  first  cargo  of  ice 
was  inii)orted  into  England  from  Norway,  there 
not  being  such  an  article  in  the  custom-house 
schedules,  application  was  made  to  the  Tieasury 
and  to  the  Board  of  Trade :  after  some  delay  it 
was  decided  that  the  ice  should  be  entered  as 
"  dry  goods ; "  but  the  whole  load  had  melted 
before  the  cargo  was  cleared. 


TO  prevent  men  thinking  and  acting  for  them- 
selves by  restraints  on  the  i)ress  is  like  the 
exploit  of  that  gallant  man  who  thought  to  pound 
up  the  crows  by  shutting  his  park  gate.' 


"  T"F  even  quibbling  is  at  any  time  justifiable, 
J-    certainly  a  man  may  quibble  for  his  life," 
said  Chief  Justice  Parsons  in  a  capital  case.^ 


"TT7"HEN  Lord  Eldon  introduced  his  bill  for 
'  »  restraining  the  liberty  of  the  press,  a  mem- 
ber moved  as  an  additional  clause,  that  all  anony- 
mous Avorks  should  have  the  name  of  the  author 
printed  on  the  titlepage. 

1  Milton,  Areopagitica,  11.  11-14. 

s  Commonwealth  v.  Hardy,  2  Mass.  316. 


ODDITIES   OF  THE  LAW.  101 

rj^HE  quaint  reason  given  b}-  Bracton,  and 
-L  adopted  by  Lord  (^oke,  why,  by  tlie  common 
law,  a  father  cannot  inherit  real  estate  by  descent 
from  his  son,  is,  that  inheritances  are  heavy,  and 
descend,  as  it  were,  by  the  laws  of  gravitation,  and 
cannot  re-ascend.' 

BARON  SNIGGE,  with  reference  to  the  dis- 
tinction between  the  actions  of  trespass  and 
trespass  on  the  case,  thus  defines  the  duty  of  the 
pleader:  "An  action  of  trespass  lieth  generally; 
but  in  an  action  on  the  case  he  ought  to  hit  the  bird 
in  the  eyeT  ^ 

"But  notwithstanding,  if  there  is  an  irregularity 
in  the  proceedings  of  the  plaintiff,  and  the  plain- 
tiff insists  upon  the  strict  default  of  the  defendant, 
as  the  courts  of  law  say,  it  is  very  necessary  a 
person  insisting  upon  the  rigor  should  hit  the  bird 
in  the  eye.'''  ^  ^^ 

LORD  BROUGHAiM  informs  us  that  it  was  to 
stop  Sir  Samuel  Romilly's  menaced  innovation 
of  subjecting  men's  real  property  to  the  payment 
of  all  their  debts  that  the  phrase  "the  wisdom  of 
our  ancestors"'  was  first  used  by  tliat  great  Equity 
Judge,  Sir  William  Grant,  and  by  Mr.  Canning 

1  Co.  Litt.  11.    2  151.  Comm.  212. 

2  Lovisfdi  V.  Kirk,  Ldiin,  f!7. 

8  Ter  Lord  ilardwjckc  in  Floyd  v.  Nangle,  3  Atk.  5G9. 


102  ODDITIES   OF  THE   LAW. 

"T  TOLD  Sir  Edward  Siigden/'  writes  Lord 
-L  Campbell  "(what  he  had  not  heard  before) 
Baron  Alderson's  joke, — -that  the  collection  of 
his  decisions  dnring  his  first  chancellorship,  which 
was  not  much  longer  than  mine,  instead  of  '  Re- 
ports tempore  Sugden,'  should  be  '  Reports  momento 
Sugden.'"^ 

"  rr^HE  Court  of  Chancery,  while  Lord  Eldon 
-L    held  the  seals,  appeared  to  many  a  despair- 
ing suitor  no  other  than  John  Bunyan's  renowned 
Doubting  Castle  itself."  —  Goldsmith  Eq.  p.  53. 


BONI  judicis  est  ampliare  justitiam.  "The 
true  text,"  said  Lord  Mansfield,  "is  'boni 
judicis  est  ampliare  justitiam,'  not  '•jurisdictionem,'' 
as  it  has  been  often  cited."  ^ 


IN  May  1874,  a  bill  to  limit  the  privilege  of 
franlcing  was  sent  from  the  Parliament  of  Ire- 
land for  the  royal  approbation.  It  contained  a 
clause,  that  any  member,  who  from  illness  or  other 
cause  should  be  unable  to  write,  might  authorize 
another  to  frank  for  him  by  a  writing  under  his 
hand. 

1  Life  of  Lord  CampbeU,  vol.  II.  p.  231. 

2  Kex  V.  Philips,  1  Burr.  304. 


ODDITIES   OF  THE  LAW.  103 

IN  the  recently  published  "  Life  of  Lord  Camp- 
bell," vol.  ii.  pp.  184-187,  is  the  following 
interesting  account  of  the  trial  of  O'Connell  and 
of  the  subsequent  proceedings  in  the  House  of 
Lords  on  the  writ  of  error  :  — 

"  O'Connell,  w^ho  had  been  allowed  to  hold  meet- 
ings for  repeal  without  check  for  above  a  twelve- 
month, was  suddenly  prosecuted  under  a  mon- 
ster indictment,  containing  an  infinite  number  of 
counts,  which  charged  him  with  an  infinite  variety 
of  offences,  and  sought  to  make  him  personally 
answerable  for  all  that  had  been  done,  written,  or 
spoken  respecting  rejaeal  for  a  long  period  of  time 
in  every  part  of  Ireland, 

"This  course  was  most  unfair  and  most  unwise. 
The  mode  in  which  the  prosecution  was  conducted 
was  still  more  reprehensible.  A  packed  jury  was 
impanelled,  from  which  all  Roman  Catholics  w^ere 
excluded ;  and  the  Chief  Justice,  Pennefather,  for 
the  purpose  of  obtaining  a  conviction,  -was  guilty 
of  such  gross  partiality,  that  the  counsel  for  the 
Crown  and  the  jMinisters  in  England  were  scan- 
dalized, and  could  not  say  a  word  in  his  defence. 
Upon  several  of  the  most  important  counts  the 
jury  found  a  verdict  in  words  which  the  Court  in 
Dublin  thought  amounted  to  Guilty^  but  which 
were  clearly  an  insufficient  finding.  On  all  the 
other  counts,  several  of  which  afterwards  turned 
out  to  be  bad  in  point  of  law,  they  found  a  general 


104  ODDITIES   OF  THE  LAW. 

verdict  of  Guilty ;  and  upon  the  whole  record  the 
Court,  '  for  the  offences  aforesaid/  passed  a  lieavy 
sentence  of  fine  and  imprisonment. 

"  Soon  after  the  meeting  of  Parliament,  the 
Marquis  of  Normanby  brought  the  subject  before 
the  House  of  Lords  by  a  motion  on  tlie  state  of 
Ireland.  .  .  .  The  next  proceeding  connected  with 
OT'onnell's  case  was  a  bill  I  introduced  to  allow 
bail  in  error  in  cases  of  misdemeanor.  I  pointed 
out  the  monstrous  injustice  of  hearing  the  merits 
of  a  conviction  after  the  sentence  had  been  carried 
into  execution,  introducing  the  well-known  quota- 
tion :  — 

'  Gnossius  hie  Rhadamanthus  habet  durissima  regua 
Castigatque,  audiqiie  dolos.'^ 

"  But  LyYidhurst  made  a  strong  speech  against 
the  bill,  and  it  was  thrown  out.  In  the  following 
session  he  highly  praised  it,  and  it  passed. 

"  When  the  writ  of  error  came  to  be  argued, 
O'Conuell  lying  in  prison  in  Dublin,  the  most 
intense  interest  was  excited,  and  the  eyes  of  all 
Europe  were  upon  us. 

"  The  main  question  was  whether,  there  being 
in  the  indictment  good  counts  on  wliich  there  was 
a  regular  verdict  of  Guilty^  the  judgment  sen- 
tencing the  defendant  to  a  discretionary  fine  and 
imprisonment  could  be  supported,  there  being  bad 

1  He  first  iiitlicts  the  puuishment,  and  tbeu  lie  hears  the  writ 
of  error. 


ODDITIES  OF  THE  LAW.  105 

counts  in  the  indictment,  and  good  counts  Avitliout 
a  regular  verdict  of  Guilty  upon  them,  the  sen- 
tence purporting  to  be  pronounced  in  respect  of 
all  the  offences  mentioned  in  the  indictment. 
There  was  likewise  a  serious  objection  to  the 
formation  of  the  jury,  which  was  raised  by  a  plea 
in  abatement. 

"  The  Crown  lawyers  contended  that  we  must 
presume  that  the  Irish  judges  knew  which  counts 
were  good,  as  well  as  which  findings  were  good 
and  which  defective,  so  that  the  whole  punishment 
awarded  must  be  taken  to  be  for  the  offences  in 
the  good  counts  on  which  there  was  a  regular 
verdict  of  Guilty.  This  certainly  would  have 
been  a  presumption  of  law  entirely  against  truths 
for  the  Irish  judges  thought  all  the  counts  in 
the  indictment  good,  and  particularh'  relied  upon 
several  which  all  the  English  judges  thought  bad ; 
and  the  Irish  judges  had  denied  that  there  was 
any  insufficiency  in  the  findings  of  the  jury.  In 
truth,  the  supposed  presumption  was  contrary  to 
all  principle,  and  was  unsupported  by  any  author- 
ity ;  the  saying  that  '  it  is  enough  if  there  be  one 
good  count  in  an  indictment '  applying  to  a  motion 
in  arrest  of  judgment  before  sentence,  and  not  to 
a  writ  of  error  after  sentence. 

"  All  the  English  judges,  however,  except  two, 
were  for  overruling  all  the  objections.  The  two 
dissentients  (Parke  and  Coltman)'  thought   that 


106  ODDITIES   OF  THE  LAW. 

the  jiulgineiit  ought  to  be  reversed,  as  credit  must 
be  given  to  the  averment  in  the  record,  that  the 
jjimislnnent  was  awarded  for  all  the  supposed 
offences  enumerated  in  the  indictment,  whereas 
some  of  these  were  not  indictabhs  and  of  others 
the  defendant  liad  not  been  hiwfully  found  guilty. 

"  Of  tlie  hiw  lords  in  the  House  two  were  now 
Tories,  —  Lj'ndhurst  and  Brougham:  and  three 
were  steady  Whigs,  —  Denman,  Cottenham,  and 
Campbell.  It  did  so  happen  by  some  strange 
chance  that  the  two  were  for  affirming  the  jndg- 
ment,  and  the  three  were  for  reversing  it.  We 
delivered  written  opinions.  I  took  immense  pains 
with  mine,  which  may  be  seen  in  Clark  and 
Finnelly's  Reports,  vol.  XL  p.  403.^ 

"  Were  the  lay  lords  to  vote,  although  they  had 
not  been  present  at  the  argument  of  the  case,  and 
were  incapable  of  understanding  it  ?  There  were 
present  a  large  number  of  ministerialists,  who, 
when  the  question  was  put  '  that  the  judgment  be 
reversed,'  hallooed  out,  '  Not  content,'  and  who,  if 
they  had  divided,  would  have  constituted  a  large 
majorit}^  for  affirming.  But  the  Government  was 
afraid  of  the  effect  to  be  produced  in  Ireland  by 
an  affirmance  so  obtained  ;  and  Lord  AVharncliffe, 
the  president  of  the  Council,  strongly  advised  that 
the   la}'  lords   should  not  vote.     I  said  that  the 

1  Lord  Campliell's  admiralilc  jutlgmont  on  this  Lranoh  of  fho 
law  of  Criminal  Ploadini^  lias  always  been  regarded  by  the  pro- 
fession as  eiuiuently  clear  and  eonelusive. 


ODDITIES   OF  THE  LAW.  107 

Constitution  knew  no  distinction  between  lay 
lords  and  law  lords,  but  that  there  was  in  reason  a 
distinction  between  lords  who  had  heard  the  case 
argued,  and  those  who  had  not,  and  that,  if  any 
of  the  hitter  class  should  vote,  the  decision  would 
bring  great  disgrace  upon  the  administration  of 
justice  in  that  House.  The  lay  lords  then  all 
withdrew;  and  the  question  being  again  put,  we 
five  law  lords  alone  being  in  the  House,  Denman, 
Cottenham,  and  Campbell  said,  Content,  and  Lynd- 
hurst  and  Brougham  said.  Not  content,  when,  Avith- 
out  a  division,  Lyndhurst  said,  '  The  contents 
have  it.'  So  the  judgment  was  reversed,  and 
OX'onnell  was  liberated.^ 

"  Brougham  immediately  came  uj)  to  me  and 
said,  '  Well,  you  have  made  Tindal  a  peer.  The 
Government  will  not  endure  a  majority  of  Radical 
law  lords  in  the  House.'  Nevertheless  poor  Tin- 
dal died  a  commoner. 

"  I  never  gave  a  more  conscientious  vote.  There 
was  an  awkwardness  in  going  against  a  large 
majority  of  the  English  judges  in  a  political  case ; 
but  our  judgment  was  generally  approved  of  in 
Westminster  Hall." 

'  T.nrd  iJroii^liain,  as  rf!]iort,f'd  lij'  the  .iiithorizcd  report cvs  of 
tlif!  House  of  liOrds,  spoke  of  it  as  "  a  decision  wliicli  will  {;o  forth 
vvitlioiit  authority,  and  eome  hack  without  respect."  11  CMark 
&  Fiuuclly,  ]).  4'j;i.  "  11(3  was  actually  in  a  furious  rage,"  writes 
Lord  Cauiifhcll,  Life  of  Lord  Urougham,  p.  531. 


108  ODDITIES   OF  THE  LAW. 

rr^IIE  following  is  one  of  the  head-notes  to  a 
-L  case  reported  in  the  second  volume  of 
Paige's  Chancery  Reports,  p.  438  :  "  A  receiver 
cannot  be  appohited  to  deprive  the  defendant  of 
the  possession  of  his  property,  ex  parte,  without 
giving  him  an  opportunity  to  be  heard  in  relation 
to  his  rights,  except  in  very  special  cases,  as  where 
he  is  out  of  the  jurisdiction  of  the  Court." 


LORD  CAMPBELL,  with  the  prospect  of  being 
appointed  Chief  Justice  of  the  Queen's  Bench, 
under  date  October  14,  A.D.  1849,  writes  r^  — 

"  Meanwhile  I  have  again  taken  to  my  favorite 
Co.  Litt.  It  certainly  is  very  pleasant  reading.  I 
am  more  than  ever  struck  by  its  unmethodical  and 
rambling  character.  But  one  must  admire  the 
author's  stupendous  familiarity  with  all  parts  of 
the  Law  of  England  :  he  is  uniformly  perspicuous, 
he  gives  amusing  glimpses  of  history  and  manners, 
and  his  etymologies  and  other  quaint  absurdities 
are  as  good  for  a  laugh  as  Joe  Miller  or  Punch. 

"  Littleton's  book  by  itself  is  a  most  exquisite 
production.  Its  plan  is  perfect  for  giving  a  vS^'s- 
tematie  outline  of  the  law  of  Real  Property  in  this 
kingdom  in  the  reign  of  Edward  IV.  and  all  its 
details  are  most  masterly.  But  Lord  Coke's 
example  ruined  juridical  composition  in  England. 

1  Life  of  Lord  Campbell,  II.  pp.  261,  262, 


ODDITIES   OF  THE  LAW.  109 

Blackstone  even  has  not  been  able  to  correct  our 
taste  ;  and  the  repertory  of  Common  Law  learning 
at  present  most  frequently  referred  to  is  the  trebly 
annotated  edition  of  Saunders's  Reports,  by  Ser- 
geant Williams,  jMr.  Justice  Patteson,  and  Vaughan 
Williams.  In  law-books  we  are  not  only  greatly 
excelled  by  the  French  and  by  the  Scotch,  but  even 
by  the  Americans. 

'•  October  15.  —  Having  been  trying  to  find  a 
motto  for  my  rings  when  I  am  called  Sergeant. 
Nothing  better  turns  up  than  '  Justitiee  tenax.' 
—  Juv.  Sat.  viii.  25." 

/^ARDTXAL  WOLSEY  is,  perhaps,  the  most 
V^  notable  person  ever  placed  in  the  stocks.  It 
is  recorded,  that  at  the  time  he  was  incumbent  at 
Lymington,  near  Yeovil,  during  the  village  feast, 
he  had  made  too  free  with  the  glass ;  and  the  con- 
dition of  the  minister  coming  under  the  notice  of 
Sir  Amias  Paulet,  a  strict  moralist,  he  ordered 
him  to  be  put  in  the  stocks,  which  was  accordingly 
done. 

LORD  CHIEF  JUSTICE  GIBBS  used  to 
say  that  he  could  get  authorities  in  the  Year 
iiooks  for  any  side  in  any  thing,"  said  Lord  Lynd- 
hurst.  Lord  Chancellor,  in  tlie  course  of  the  argu- 
ment of  a  celebrated  case  in  the  House  of  Lords.^ 

1  Gray  v.  The  Queen,  11  Clark  &  rimi.lly,  441. 


110  ODDITIES    OF  THE  LAW. 

nnilE  Court  of  Common  Pleas,  so  late  ar,  the 
-^  5  W.  «&  M.,  held  that  a  man  might  have  a 
property  in  a  negro  boy,  and  might  bring  an  action 
of  trover  for  him,  because  negroes  are  heathens} 
''A  strange  i)rinciple  to  found  a  right  of  property 
upon  I  "  exclaims  Christian.^ 


LORD  BACON,  in  his  paper  on  the  "Amend- 
ment of  the  Common  Law,"  wrote  :  "  Great 
judges  are  unfit  persons  to  be  reporters ;  for  they 
have  either  too-  little  leisure  or  too  much  authority, 
as  may  appear  well  by  those  two  books,  whereof 
that  of  my  Lord  Dyer  is  but  a  kind  of  note-book, 
and  those  of  my  Lord  Coke  hold  too  much  de 
proprio."  ^ 

"  nr  ET  one  devil  torment  the  other,"  said  my 
-L^  Lord  Keeper  Egerton  to  a  question  asked 
him,  what  should  become  of  the  brcjker.  Both 
broker  and  usurer  had  conspired  to  cot  in  a  young 
gentleman. 

IN  a  bill  for  pulling  down  the  old  Newgate  in 
Dublin,  and  rebuilding  it  on  the  same  spot,  it 
was  enacted  that  the  jjrisoners  should  remain  in 
the  old  jail  till  the  new  one  was  completed. 

1  Ltl.  Raym.  147.  2  i  b1.  Comm.  425  note. 

*  Bacon's  Letters  and  Life,  vol.  V.  p.  86,  ed.  Spedding. 


ODDITIES   OF  THE  LAW.  Ill 

'TTT'E  suggest  the  following  terse  description  of 
V  V  *'  The  two  Supream  Laws  of  the  Reahn," 
found  in  "  The  Practice  Unfolded  "  of  the  Hiofh 
Court  of  Chancery,  p.  53,  ed.  1672,  to  the  publish- 
ers of  the  next  edition  of  "Bleak  House,''— -"The 
Princes  of  this  Land  to  the  imitation,  of  that 
lieavenly  representation  have  appointed  two  su- 
preme seats  of  Government  within  this  Land :  the 
one  of  Justice,  wherein  nothing  but  the  strict  letter 
of  the  Law  is  observed ;  and  the  other  of  ^Mercy, 
which  in  the  rigor  of  the  Law  is  tempered  with 
the  sweetness  of  Equity,  the  which  is  nothing  but 
Mercy  qualifying  the  rigor  of  Justice."  ^ 


IN  some  of  the  cases  brought  against  Lord  Bacon 
implying  corruption,  the  sums  of  money  re- 
ceived by  him  were  not  gifts  at  all,  but  money 
borrowed,  and  recoverable  as  debts.  Three  of 
these  cases  gave  rise,  after  Bacon's  death,  to  a 
curious  question.  Being  claimed  by  the  lenders 
as  debts  due  to  them  from  the  estate,  the  executors 
pleaded  that  they  had  been  decided  by  the  tlouse 
of  Lords  to  be  bribes.^ 

1  Tlie  object  of  the  science  of  equity  is  "  the  amelioration  of 
the  hisv  in  that  wherein  by  reason  of  its  universality  it  is  de- 
ficient." Mr.  H.  B.  Wallace's  Preface  to  White  and  Tudor'.s 
Lead.  Cas.  in  Equity,  quot(Ml  in  Rawle  on  Equity,  p.  92. 

1  Bacon,  ^Vork3,  XIV.  iiW,  cd.  Ellis  &  Spedding. 


112  ODDITIES   OF  THE  LAW. 

BY  (he  Constitution  of  the  Commonwealth  of 
jNIcissachusetts  the  office  of  justice  of  the  peace 
is  a  judicial  office,  and  must  be  exercised  in  })erson  ; 
and  a  woman,  whether  married  or  unmarried,  can- 
not be  appointed  to  such  an  office.' 

In  England  the  Court  of  Common  Pleas  have 
recently  decided  that  women  are  subject  to  a 
legal  incapacity  from  voting  at  the  election  of  mem- 
bers of  Parliament;  and  that  the  word  "man" 
in  the  statute  is  used  in  contradistinction  to 
"  woman."  Mr.  Justice  Byles  observed :  "  Women 
for  centuries  have  always  been  considered  legally 
inca])able  of  voting  for  members  of  Parliament; 
as  much  so  as  of  being  themselves  elected  to  serve 
as  members.  ...  In  addition  to  this,  we  have  the 
unanimous  decision  of  the  Scotch  judges.^  I  trust 
their  unanimous  decision  and  our  unanimous  decis- 
ion will  forever  exorcise  and  lay  tliis  ghost  of  a 
doubt,  which  ought  never  to  have  made  its  appear- 
ance.' 


"  3 


LORD  BACON  says,  that  "the  nature  of 
Justice  distributive  is  to  consider  not  only 
de  toto,  but  de  tanto,  and  not  to  pronounce  sen- 
tence by  oiuices  and  drachms,  but  by  grains." 

1  Opinion  of  the  Justices,  107  Mass.  G04.  But  she  may  he  a 
memhcr  of  a  school  coniinittee.  It  is  a  local  office  of  an  admin- 
istrative character.     Opinion  of  the  Justices,  11.5  Mass.  002. 

2  Brown  v.  Inj^ram,  7  Court  of  Sess.  Cases,  -kl  sur.  281. 
8  Chorltou  V.  Lings,  L.  R.  4  C.  P.  374,  394,  A.D.  18G8. 


ODDITIES   OF  TUE  LAW.  113 

THE  Court  set  aside  the  verdict  as  perverse, 
and  granted  a  new  trial,  where  an  Irish  jury 
liad  found  that  a  hunter  was  "  necessary  "'  for  a 
mere  boy,  avIio,  liaviiig  bragged  at  a  ball  tliat  he 
was  a  member  of  the  Surrey  Stag  Hunt,  and 
worth  six  hundred  pounds  a  year,  had  induced  an 
Irishman  to  sell  him  his  horse  for  a  hundred  and 
fifty  pounds,  had  hunted  the  animal  throngh  the 
season,  and  had  then,  when  payment  was  de- 
manded, set  up,  through  his  guardian,  what  was 
described  by  an  hidignant  advocate  as  "  the  shabby 
defence  of  infancy."  ^ 

THE  following  is  a  terse  statement  of  an 
universal  rule  of  civil  and  criminal  j^lead- 
ing :  "  Good  matter  must  be  pleaded  in  good 
form,  in  apt  time,  and  in  due  order,  or  otherwise 
great  advantage  may  be  lost."  —  Co.  Litt.  303  a. 


A  WRIT  of  Mandamus  is  a  high  prerogative 
writ  wliich  lias  Ijeen  said  to  be  "peculiar  to 
the  Court  of  Queen's  Bench,  and  one  of  the  flow- 
ers of  it,"  2  —  a  definition  \vhi(,'li  throws  veiy  little 
liglit  nj)on  the  qnestion  as  to  the  occasions  that 
will  r(;cpiire  or  justify  its  issue.'^ 

1  Skririo  v.  Gordon,  I.  R.  9  C.  L.  479. 

2  Aw(lflf;y  V.  Joyp,  Pophain,  17G.    It  liaa  also  been  styled  festi- 
uurn  rcini'dium      1  Stiuuge,  518. 

8  101  Mass.  405. 


114  ODDITIES   OF  THE  LAW. 

IN  ancient  times  in  Greece,  and  in  later  times  at 
AUkmis,  the  duty  of  prosecuting  for  murder 
devolved  upon  the  relations  of  the  murdered  man  ; ' 
and  even  in  England  a  last  relic  of  the  doctrine 
that  homicide  was  a  private  wrong,  viz.  the  Appeal 
of  INIurdcr  and  Wager  of  Battle,  though  long  obso- 
lete, was  acknowledged  by  the  law-  until  abolished 
by  statute  59  Geo.  III.  ch.  46. 


EEADERS  of  the  entertaining  work,  "Bos- 
welFs  Life  of  Johnson,"  will  remember  how 
the  burl}^  old  doctor,  in  answer  to  a  remark  made 
by  the  celebrated  Quaker  lady,  Mrs.  Knowles, 
said,  "  jNIadam,  we  have  different  modes  of  restrain- 
ing evil,  —  stocks  for  the  men,  a  ducking-stool  for 
women,  and  a  pound  for  beasts.'' 


"  A  POPULAR  judge  is  a  deformed  thing ;  and 
-^^^  jjJaudites  are  fitter  for  players  than  for 
magistrates.  Do  good  to  the  people,  love  them, 
and  give  them  justice.  But  let  it  be,  as  the  Psalm 
saitli,  nihil  inde  expectantes ;  looking  for  nothing, 
neither  praise  nor  jjrofit."'^ 

1  Demosthenes  I.  411  note,  ed.  Whiston. 

2  Ashford  v.  Thornton,  1  B.  &  A.  405,  A.D.  1818.  ' 

8  Lord  Bacon's  Speech  in  the  Star  Chamber,  before  the  Sum- 
mer Circuits,  A.D.  1G17.  Letters  and  Life,  VI.  p.  211,  ed.  Sped- 
ding. 


ODDITIES    OF  THE  LAW.  115 

DURING  all  tlie  time  Coke's  Reports  were 
publishing,  and  for  twenty-two  j-ears  after- 
wards, no  other  Reports  were  printed.  "  It  became 
all  the  rest  of  the  lawj'ers  to  be  silent  whilst  their 
oracle  was  speaking."  ^  Sir  Henry  Hobart  alone, 
his  immediate  successor  in  the  Common  Pleas, 
made  a  collection,  which  was  published  sixteen 
years  after  his  death,  and,  though  unskilfully 
edited,  was  commended  by  Sir  Heneage  Finch, 
who  published  a  corrected  edition,  as  "beautiful 
even  in  confusion." 


THE  form  of  judgment  for  punishment  by  the 
pillory  was  that  the  "  defendant  should  be 
set  iji  and  upon  the  pillory."  We  find  particulars 
of  a.  case  which  occurred  in  1759,  when  the  under- 
sheriff  of  Middlesex  was  fined  fifty  pounds  and 
imprisoned  for  two  months,  by  the  Court  of 
King's  Bench,  because,  in  executing  the  sentence 
upon  Dr.  Shebbeare,  who  had  been  convicted  of  a 
political  libel,  he  had  allowed  hini  to  be  attended 
upon  the  platform  by  a  servant  in  livery,  holding 
an  umbrella  over  his  head,  and  to  stand  Avitliout 
having  his  neck  and  arms  confined  in  the  ijiilory. 


TO  the  law  and  to  the  testimony.  —  Isaiah 
viii.  20. 

1  Preface  to  5  Mod. 


116  ODDITIES   OF  THE  LAW. 

MR,  W.  II.  DAWSON  of  tliG  "Craven 
Pioneer "  tells  us  the  ducking-stool  in 
b3-gone  days  was  used  in  Craven.  He  says :  "  A 
ducking-pond  existed  at  Kirkby,  althougli  it  has 
not  been  used  within  the  memory  of  any  living 
jjerson.  Scolds  of  both  sexes  were  punished  by 
being  '  ducked : '  indeed,  in  the  last  observance  of 
the  custom,  a  tailor  and  his  wife  were  'ducked' 
together  before  the  view  of  a  large  gathering  of 
people.  The  husband  had  applied  for  his  wife  to 
undergo  the  punishment  on  account  of  her  quar- 
relsome nature  ;  but  the  magistrate  decided  that 
one  was  not  better  than  the  other,  and  he  ordered 
a  joint  punishment.  Back  to  back,  therefore, 
husband  and  wife  were  chained,  and  dropped  into 
the  cold  Avater  of  the  pond.  Whether  it  was  in 
remembrance  of  tins  old  observance,  or  not,  can- 
not be  definitely  said ;  but  it  is  nevertheless  a 
fact,  that  in  East  Lancashire,  in  the  Spring  of  1880, 
a  man  who  had  committed  some  violation  of  morals 
was  forcibly  taken  by  a  mob,  and  dragged  several 
times  through  a  pond  until  he  had  expressed  peni- 
tence for  his  act." 

TRANSIT  in  rem  judicatam.  This  maxim  has 
thus  been  tersely  rendered :  "  The  cause  of 
action  is  changed  into  matter  of  record,  which  is 
of  a  higher  nature  ;  and  the  inferior  remedy  is 
merged  in  the  higher."  ^ 

1  Per  Parke,  B.  iu  King  v.  Hoare,  13  ]M.  &  W.  504. 


ODDITIES   OF  THE  LAW.  117 

THE  following  anecdotes  of  Lord  Abinger  are 
taken  from  his  Life  pp.  193-195 :  — 

"  I  have  it  on  Lord  Chelmsford's  authority,  that 
the  Duke  of  Wellington  said  of  my  father:  'When 
Scarlett  is  addressing  a  jury,  tliere  are  thirteen 
jurymen.'  This  is  both  characteristic  of  the  influ- 
ence he  exercised  when  addressing  juries,  and  of 
the  Duke's  terse  manner  of  expressing  himself. 

"  Mr.  Justice  Patteson  related  therfollowing  story 
of  my  father's  dexterity  in  the  conduct  of  a  cause ; 
the  ends  of  justice  being  attained  by  a  theatrical 
display  of  incredulity  which  deceived  both 
Brougham  and  Parke,  the  counsel  on  the  other 
side.  ^ly  father,  with  Patteson  as  junior  counsel, 
was  for  the  defendant.  He  told  Patteson  that  he 
would  manage  to  make  Brougliam  produce  in  evi- 
dence a  written  instrument  the  withholding  of 
which,  on  account  of  the  insufficiency  of  the  stamp, 
was  essential  for  the  success  of  his  case.  That  on 
Patteson  observing,  that,  even  if  he  could  throw 
Brougham  off  his  guard,  he  would  not  be  so  suc- 
cessful with  Parke,  my  father  answered  that  he 
would  try.  And  he  then  conducted  the  case  with 
sucli  consummate  dexterity,  pretending  to  disbe- 
lieve the  existence  of  the  document  referred  to, 
tliat  Br(tugham  and  Parke  resolved  to  produce  it, 
not  being  aware  that  my  father  liad  any  sus])icion 
of  its  invalidity.  Patteson  described  the  air  of 
extreme  surprise  and  mortification  of  my  father  on 


118  OBBITIES   OF  THE  LAW. 

its  production  by  Brougham,  with  a  flourish  of 
trumpets  about  the  '  non-existence  of  which  docu- 
ment his  learned  friend  had  reckoned  on  so  confi- 
dently.' Patteson  went  on  to  say  that  the  way  in 
which  my  father  asked  to  look  at  the  instrument, 
and  his  assumed  astonishment  at  the  discovery  of 
the  insufficiency  of  the  stamp,  were  a  masterpiece 
of  acting, 

"  On  one  occasion  an  action  was  brought  for  the 
abatement  of  a  nuisance,  and  Mr.  Scarlett  was 
employed  for  the  defence.  He  began  his  cross- 
examination  of  a  lady,  the  plaintiff's  witness,  by 
inquiring  tenderly  about  her  domestic  relations, 
her  children,  their  illnesses.  The  lad}^  became 
confidential,  and  appeared  flattered  by  the  kind 
interest  taken  in  her.  The  judge  interfered,  with 
a  remark  about  the  irrelevancy  of  this.  jNIr.  Scar- 
lett begged  to  be  allowed  to  proceed  ;  and  on  the 
conclusion  of  the  cross-examination,  he  said :  '  My 
Lord,  that  is  my  case.'  He  had  shown  on  the 
witness's  testimony  that  she  had  brought  up  a 
numerous  and  healthy  progeny  in  the  vicinity  of 
the  alleged  nuisance.  The  jury,  amused  as  well 
as  convinced,  gave  a  verdict  for  the  defendant. 

"  Sir  Walter  Scott  promised  a  friend  that  he 
would  write  a  book  for  his  benefit.  The  fiiend 
died  before  the  promise  was  fulfilled,  and  liis 
executors  insisted  that  Sir  Walter  should  write  a 
book  for  the  benefit  of  the  widow  and  children  of 


ODDITIES   OF  THE  LAJV.  119 

the  deceased.  This  Sir  Walter  refused  to  do.  Tlie 
executors  sought  the  advice  of  Mr.  Scarlett,  who, 
having  listened  to  their  case,  said  :  '  Let  us  suppose 
the  position  to  be  reversed :  if  Sir  Walter  Scott 
had  died,  should  you  have  required  his  executors 
to  write  a  book  for  the  benefit  of  your  clients  ? '  — 
'  Oh,  no  ! '  exclaimed  the  executors,  convinced  at 
once  that  they  had  no  case  against  Sir  Walter 
Scott." 


IN  an  old  case  a  man  stole  his  wife  against  her 
friends'  consent,  and  sued  them  for  her  portion 
in  the  Court  of  Chancery,  but  was  refused  relief 
on  the  ground,  as  it  was  quaintly  stated  by  Sir 
Thomas  Egerton,  that  "he  who  steals  flesh,  let 
him  provide  bread  how  he  can." 


BARON  BRAMWELL  once  observed :  " Every 
person  of  any  experience  in  courts  of  jus- 
tice knows  that  a  scintilla  of  evidence  against  a 
railway  company  is  enough  to  secure  a  verdict  for 
the  plaintiff.  I  was  once  in  a  case  before  a  most 
aljle  judge,  the  late  Chief  Justice  Jervis,  in  which 
I  was  l)eaten,  I  dare  say  rightl}',  in  consequence 
of  an  observation  of  Ids :  '  Nothing  is  so  easy  as 
to  be  wise  after  the  event.' "  ^ 
1  Cornman  v.  Eastern  Counties  Railway  Co.  5  Jur.  N.  S.  C58. 


120  ODDITIES   OF  TUB  LAU'. 

THE  head-note  to  Blackman  v.  Bainton,  15  C.  B. 
X.  S.  432,  is  quaint :  "  Twenty-five  witnesses 
and  a  horse  on  one  side  against  ten  witnesses  on 
the  other.  Hekl,  not  such  a  preponderance  of 
'inconvenience '  as  to  induce  the  Court  to  brino- 
back  the  venue  from  the  place  where  the  cause 
of  action  (if  any)  arose." 


LORD  BAG  OX,  in  the  Advancement  of  Learn- 
ing, II.  20,  §  8,^  approves  of  condensing 
argument  into  brief  and  acute  sentences,  and  gives 
these  as  examples :  — 

PEO   VERBIS   LEGIS. 

Xon  est  interpretatio,  sed  divinatio,  quee  recedit 
a  litera. 

Cum  receditur  a  litera,  judex  transit  m  legisla- 
torem. 

PRO   SEjSTTENTIA  LEGIS. 

Ex  omnibus  verbis  est  eliciendus  sensus  qui 
interpretatur  singula.^ 

1  Works,  III.  p.  413,  ed.  Ellis  &  Spo.lding. 

-  For  THE  Words  of  the  Law.  — Interpretation  which  departs 
from  the  letter  is  not  interpretation,  but  divination. 

When  the  letter  is  departed  from,  the  judge  becomes  the  law- 
giver. 

For  the  Intention  of  the  Law.  —  The  sense  according  to 
which  each  word  is  to  be  interpreted  must  be  collected  Irom  all 
the  words  together, 


ODDITIES   OF   THE  LAW.  121 

DAMISELLA.  A  light  damosel  or  miss.  Wil- 
liam Hoppeshort  holds  half  a  yard-land,  in 
Bockhampton,  County  of  Berks,  of  our  Lord  the 
King,  b}'  the  service  of  keeping  for  the  King  six 
damsels,  to  ^A•it,  whores,  at  the  cost  of  the  King. 
This  was  called  pimp-tenure.^ 


EPITAPH    on  Sir  John  Strange  the  report- 
er :  — 

On  Strange,  a  Lawyer. 

Here  lies  an  honest  lawyer,  and  that  is  Strange. 


IN  a  case  in  which  it  was  held  that  a  bond  in 
consideration  of  past  cohabitation  is  good  in 
law,  Mr.  Justice  Bathurst  "  pleased  the  sancti- 
monious by  enriching  his  judgment"  with  quota- 
tions from  the  Books  of  Exodus  (xxii.  16)  and 
Deuteronomy  (xxii.  28,  29)  to  prove,  that  '•  wher- 
ever it  appears  that  the  mtni  is  the  seducet\  the  bond 
is  good."  2  We  wonder  when*  a  case  will  occur  in 
which  the  question  of  the  validity  of  the  bond, 
the  woman  being  the  seducer,  shall  be  solemnly 
adjudged  and  reported. 

1  Cunningham  Law  Diet,  sub  voce,  Daniisella.  Jacob  Law 
Diet,  sub  voce,  Pimp-Teuure.  Blount,  Tenures,  pp.  2'J,  30,  ed. 
Hazlilt. 

-  Turner,  spinster  v.  Vaughan,  2  Wils.  o'oO. 


122  ODDITIES   OF  THE  LA  W. 

"  1~  ET  tliis  action, *'  siiid  Lord  Elleiiborougli, 
-L^  when  Sir  William  Seott  Avas  sued  for 
illegally  excommunicating  one  IJeaurain,  whose 
animosity  he  had  endeavored  to  stifle  by  a  gift,  — 
"  Let  this  action  be  a  lesson  for  all  men  to  stand 
boldl}'  forward,  —  to  stand  on  their  characters, — 
and  not,  by  compromising  a  present  difiiculty,  to 
accumulate  imputations  on  their  honor."  ' 


CURIOUS  SPECIMEN  OF  VIVA  VOCE  PLEAD- 
INGS IN  THE  ENGLISH  COURTS  IN  THE 
REIGN   OF   EDWARD   II.^ 

^  I  ^HE  case  was  this:  Aleyne  de  Newton  brought 
-'-  his  writ  of  annuity  against  the  Abbot  of 
Burton-upon-Trent,  and  demanded  tliirty  pounds 
arrears  of  an  annual  rent  of  forty-live  pounds,  and 
lie  declared  that  one  John,  Abbot  of  Burton,  and 
predecessor  of  the  present  abbot,  did,  by  assent  of 
the  convent,  grant  an  annuity  to  Ale3'ne,  payable 
twice  in  the  year,  till  he  was  advanced  to  a  con- 
venable  benefice ;  and  he  exhibited  a  specialty 
containing  that  the  abbot,  by  assent,  etc.,  did 
grant  an  annuity  to  Aleyne  de  Newton,  Clerk,  in 
the  above  manner,  as  he  had  declared.  Upon 
this,  Willuby  (as  counsel  for  the  defendant)  prayed 
judgment  of  the  writ,  because  of  the  variance  be- 

1  Life  of  Lord  Eldoii  ]>y  Twiss,  vol.  II.  jip.  2.33-2;!5,  2d  ed. 

2  Beeves  Hist.  Euj^.  Law,  vol.  II.  pp.  o47-34l),  3d  cd. 


ODDITIES   OF  THE  LAW.  123 

tween  tlie  writ  and  tlie  specialty  ;  for  in  the  writ 
he  was  named  Aleyne  de  Newton,  but  in  the 
specialtj  Alej'ne  de  Newton,  Clerk,  AVard  said 
that  it  was  no  variance ;  yet  Willnby  maintained, 
that  as  he  might  have  a  writ  agreeable  to  the 
specialty,  if  he  varied  in  his  own  purchase  of  it, 
tlie  writ  would  be  ill ;  but  he  could  in  this  case 
have  a  writ  agreeable  to  his  specialty.  Ergo,  etc. 
And  again,  as  far  as  appeared  by  the  specialt}', 
it  was  made  to  some  one  else,  and  not  to  the 
person  named  in  the  writ.  Stonore,  one  of  the 
justices,  said:  "Then  you  ma}^  plead  so  if  you 
will ;  but  the  writ  is  good :  "  therefore  respondeas 
ouster. 

"  Then,"  said  Willuby,  "  he  cannot  demand  this 
annuity,  because  we  say  that  John,  our  prede- 
cessor, on  such  a  day,  etc.,  tendered  him  the 
vicarage  of,  etc.,  which  was  void,  and  in  his  gift, 
in  the  presence  of  such  and  such  persons,  which- 
vicarage  he  refused  :  wherefore  we  do  not  inider- 
stand  that  lie  can  any  longer  demand  this  an- 
nuity." SiTAUD.  —  "  We  say  this  vicarage  was  not 
worth  one  hundred  shillings:  therefore  we  do  not 
uuderstand  it  to  be  a  eonvenahle  benefice,  so  as  to 
extinguish  an  annuity  of  forty  pounds."  WlL- 
LUIJV.  —  "Then  you  admit  that  we  tendered  you 
tlie  vicarage,  and  that  you  refused  it?"  etc. 
Shard.  —  "As  to  the  tender  of  a  l)enefice  whieli 
was  not  conveiiable,  I   have  no  business  to  make 


124  ODDITIES   OF  THE  LAW. 

any  answer  at  all."  Then  j\Iutford,  one  of  the 
justices,  asked  what  sort  of  benefice  they  consid- 
ered as  convenable,  so  as  to  extinguish  the  annuity. 
Shard.  —  "  We  mean  one  of  ten  marks  at  least." 
Then  Stonore  said:  "Do  you  admit  that  the  vicar- 
age was  not  worth  one  hundred  shillings  ?  "  Wil- 
LUBY.  — "  We  will  aver  that  the  vicarage  was 
worth  ten  marks,  prest,  etc.  ;  and  he  has  admitted 
that  one  of  that  value  should  extinguisli  the 
annuity."  Shaiid.  —  "  And  we  will  aver  that  it 
was  not  worth  ten  marks,  prest,'"  etc. 

After  this  issue,  Willuby  was  desirous  of  recur- 
ring back  to  his  first  plea,  and  said :  "  As  you 
declare  that  the  vicarage  was  not  worth  one  hun- 
dred shillings,  we  will  aver  that  it  was  worth  one 
hundred  shillings,"  etc.  But  Stonore  interposed, 
and  said :  '■'  He  declares  that  the  vicarage  is  worth 
ten  marks ;  and  after  that  there  is  nothing  to  be 
done,  but  that  the  issue  should  be  taken  on  your 
declaration  or  his:  now,  it  seems  that  it  should 
rather  be  on  yours,  for  by  your  plea  you  make 
that  a  convenable  benefice  Avhich  is  worth  ten 
marks,  and  such  a  declaration  you  ought  to  main- 
tain," etc.  WiLLUHY.  —  "  Then,  mention  of  the 
value  came  first  from  him,  when  he  said  it  was  not 
worth  one  hundred  shillings ;  so  that  it  will  be 
sufficient  for  me  to  traverse  what  he  had  said." 
But,  Stonore  pressing  him  whether  he  would  main- 
tain his  plea,  Willuby  said  he  would,  and  accord- 


ODDITIES   OF  THE  LAW.  125 

ingl}-  pleaded  that  the  vicarage  was  worth  ten 
marks,  prest^  etc.  et  alii,  that  it  was  not  worth 
ten  marks,  prest,  etc.  and  so  issue  was  joined. 

The  pleadings  upon  the  record  in  the  above 
case  must  then  have  stood  thus :  The  defendant 
said  a  vicarage  had  been  tendered  and  refused, 
and  so  the  annuity  should  cease,  judgment  of  the 
action.  To  this  the  replication  was :  The  vicarage 
tendered  was  not  worth  ten  marks,  and  so  not  a 
convenable  benefice  to  extinguish  the  annuity: 
rejoinder,  it  was  worth  ten  marks  :  surrejoinder,  it 
was  not. 

This  instance  will  serve  to  show  the  manner  of 
pleading  viva  voce  at  the  bar :  every  tiling  there 
advanced  Avas  treated  as  a  matter  only  in  fieri, 
wliich  upon  discussion  and  consideration  might  be 
amended,  or  wholly  abandoned,  and  then  other 
matter  resorted  to,  tift  at  length  the  counsel  felt 
himself  on  such  grounds  as  he  could  trust.  Where 
lie  finally  rested  his  cause,  that  was  the  plea  which 
was  entered  upon  the  roll,  and  abideth  the  judg- 
ment of  an  inquest,  or  of  the  Court,  according  us 
it  was  u  point  of  law  or  of  fact. 


rr^IIE  Irish  statute-book  opens  characteristically 
-L    with:   "An  Act  that  tlie  King's  officers  may 
travel  fi^  sea  from  one  place  h)  another  within  the 
land  of  Ireland." 


126  ODDITIES   OF  THE  LAW. 

ON  the  removal  of  a  distinguished  counsel  from 
a  house  in  Red  Lion  Square,  an  ironmonger 
became  its  occupant ;  and  Erskine  wrote  the  fol- 
lowing epigram  on  the  change  :  — 

"  This  house,  where  once  a  lawyer  dwelt, 
Is  now  a  smith's —  alas  ! 
How  rapidly  the  iron  age 
Succeeds  the  ag-e  of  brass !  " 


SYDNEY  S:\IITH,  doubting  the  practicability 
of  introducing  trial  by  jury  into  New  South 
Wales,  imagines  a  few  of  the  excuses  that  might 
b3  made  by  any  one  summoned  as  a  juror.  "  I 
cannot  come  to  serve  upon  the  jury :  the  waters 
of  the  Hawksbury  are  out,  and  I  have  a  mile  to 
swim.  The  kangaroos  will  break  into  my  corn. 
The  convicts  have  robbed  iwe.  'Sly  little  boy  has 
been  bitten  by  an  ornltliorynchus  jjaradoxiis.  I 
have  sent  a  man  fifty  miles  with  a  sack  of  flour  to 
buy  a  pair  of  breeches  for  the  assizes,  and  he  is 
not  returned." 

IN  the  well-known  case  of  Emans  v.  Turnbull, 
2  Johns.  313,  Chief  Justice  Kent  delivered  the 
opinion.  In  a  very  recent  case  in  Ireland,  Chief 
Justice  May,  citing  this  case,  says :  "  The  Lord 
Chancellor  Kent  in  giving  judgment,"  etc.^ 

1  Brew  V.  Hareu,  I.  11.  11  C.  L.  'il7,  in  Excb.  Cham.  A.D.  1877. 


T 


ODDITIES   OF  THE  LAW.  127 

HE  following  are  specimens  of  Greek  wit :  — 


Philip,  in  passing  sentence  on  two  rogues, 
ordered  one  of  them  to  leave  JNIacedonia  with  all 
speed,  and  the  other  to  try  and  catch  him. 

Demonax  was  once  heard  to  say  to  a  lawyer, 
"Probably  all  laws  are  really  useless;  for  good 
men  do  not  want  laws  at  all,  and  bad  men  are 
made  no  better  by  them." 

Alcibiades,  when  about  to  be  tried  by  his  coun- 
trymen on  a  capital  charge,  absconded,  remarking 
that  it  was  absurd,  when  a  suit  lay  against  a  man, 
to  seek  to  get  off,  when  he  might  as  easily  get 
away. 

Socrates  used  to  say  the  best  form  of  govern- 
ment was  that  in  wliich  the  people  obey  the 
rulers,  and  the  rulers  obey  the  laws. 

It  was  a  saying  of  Cato  the  Elder,  "  Those 
magistrates  who  can  prevent  crime,  and  do  not,  in 
effect  encourage  it." 

Cicero,  when  one  Nepos  tohl  liim  he  had  caused 
tbe  death  of  more  by  liis  testimony  than  he  had 
ever  saved  by  his  advocacy,  replied,  "That  is 
because  my  credit  exceeds  my  eloquence." 


DOUGLAS   JEPtllOLD  says,  "Truth  is  like 
gold  :  a  really  wise  man  makes  a  little  of  it 
go  a  long  way." 


128  ODDITIES   OF   THE  LAW. 

AUTHORITIES  are  the  actual  decisions  of 
the  courts." ' 
"The  law  is  made  up  of  decided  cases." ^ 
"  Decisions  of  the  Courts  of  Common  Law  are 
at  one  the  best  expositors  and  the  surest  evidence 
of  the  common  law  itself."  ^ 

"  A  matter  is  properly  said  be  adjudged  when 
there  can  be  no  appeal."  ^ 


IN  a. case  in  the  time  of  Elizabeth,  the  plaintiff, 
for  putting  in  a  long  replication,  was  fined  ten 
pounds,  and  imprisoned,  and  a  hole  to  be  made 
through  the  replication,  and  to  go  from  bar  to  bar 


with  it  hung  round  his  neck.^ 


IF  one  be  in  execution,  and  if  he  has  no  goods, 
he  shall  live  of  the  charity  of  others ;  and  if 
others  will  give  him  nothing,  let  him  die  in  the 
name  of  God."  ^ 

1  Pollock,  C.  B.  in  Dyer  v.  Best,  a5  L.  J.  Excli.  107.     A  chain 
of  authorities  Milton  calls  "  a  paroxysm  of  citations." 

2  Lord  Lyndhurst,  L.  C.  in  Lewis  v.  Bridgman,  2  Clark  & 
Finnelly,  747. 

3  Tiudal,  C.  J.  in  The  Queen  v.  Millis,  10  Clark  &  Fiunelly, 
657. 

^  Jenkins,  Cent.  Preface. 
6  Milward  v.  Welden,  Tothill,  101. 

6  Montague,  Chief  Justice,  in  Dive  v.  :Manmngton,  1  Plowd. 
68,  quoted  in  M'Laiu  v.  Ilayne,  1  Brevard,  296. 


ODDITIES  OF  THE  LAW.  129 

IN  ^Ir.  Golclwiii  Smith's  sketch  of  Pitt,  it  is  re- 
hited  that  Lord  Eldon,  at  that  time  Attorney 
General  Sir  John  Scott,  "opened  his  attempt  to  pro- 
cnre  the  capital  conviction  of  a  man  who  he  knew 
had  done  nothing  worthy  of  death  with  a  pathetic 
exordium  on  his  OAvn  disinterestedness  and  virtue. 
He  should  have  nothing  to  leave  his  children  but 
his  good  name  ;  and  then  he  wept.  The  Solicitor 
General  wept  with  his  weeping  chief.  '  What  is 
the  Solicitor  weeping  for  ? '  said  one  bystander  to 
another.  '  He  is  weeping  to  think  how  very  little 
the  Attorney  will  have  to  leave  his  children.'  "  ^ 


''VTE^MO  ex  proprio  dole  consequitur  actionem. 
-'-^  It  is  a  maxim  of  law  that  "a  man  shall  not 
take  advantage  of  liis  own  wrong."  The  principle 
is  as  okVas  the  time  of  Demosthenes.  In  the  Ora- 
tion against  Leochares,  lie  says :  "  It  can  never  be 
just  to  regard  a  wrongful  act  as  evidence  for  a 

AN  indictment  charging  that  the  defendant 
forcjed  a  certain  writing  o})ligatory  by  which 
A  is  hound,  is  void  for  its  manifest  inconsistency 
and  repugnancy.  The  Court:  "  Tliat  is  a  wheel 
in  a  wheel,  and  can  never  be  made  good."^ 

1  The  North  American  Review,  vol.  CXIV.  p.  78. 

2  The  Kiiiy  v.  Neck,  2  Show.  472. 


130  ODDITIES   OF  THE  LAW. 

A  WRIT  de  ventre  inspiciendo,  returnable 
Tres  Mich,  on  the  behalf  of  P]d\vard  As- 
cough,  Esq.  and  Elizal)etli  his  wife,  Anne  Chaplin, 
spinster,  Charles  Fitzwilliams,  and  Frances  his 
wife,  co-heirs  of  Sir  John  Chaplhi,  Iiart.,  their 
brother,  against  dame  Elizabeth  Chaplin,  widow 
of  the  said  Sir  John.  Tlie  writ  was  returned  that 
the  lady  was  with  child,  and  a  motion  made  for 
the  safe  custody  of  her  until  her  delivery.  It  was 
suggested  that  the  lady's  mother  was  likewise  with 
child,  and  therefore  neither  she  nor  any  other 
woman  with  child  were  proper  persons  to  be  with 
her.  The  Court  agreed  that  such  a  clause  should 
be  inserted  in  the  writ ;  and  ladies  were  named  on 
the  part  of  the  prosecutors  or  heiresses  to  attend 
the  lady  during  her  pregnancy  and  till  her  deliver}'^ ; 
but  they  must  not  name  any  spinster,  and  the 
mother  was  allowed  to  visit  only.^ 


IN  Kelyng's  Rej)orts  is  this  passage :  "  At  the 
Lent  Assizes  for  Winchester,  18  Car.  II.  the 
clerk  appointed  by  the  bishop  to  give  clergy  to 
the  prisoners,  being  to  give  it  to  an  old  thief,  I 
directed  him  to  deal  clearly  with  me,  and  not  to 
say  Ie[/it  in  case  he  could  not  read;  and  thereupon 
he  delivered  the  book  to  him,  and  I  perceived  tlie 

1  Ascough  V.  Lady  Chaplin,  Cooke  93,  3d  ed.;  S.  C.  2  P.  Wms. 
591;  2  Eq.  Cas.  Ab.  780;  Mosely,  391,  A.D.  1730. 


ODDITIES   OF  THE  LAW.  131 

prisoner  never  looked  upon  the  book  at  all,  and 
)'et  the  bishop's  clerk,  upon  the  demand  of  le(/it^ 
or  non  legit,  answered  legit ;  and  thereupon  I  wislied 
him  to  consider,  and  told  liim  I  doubted  lie  was 
mistaken,  and  bid  the  clerk  of  the  assizes  ask  him 
again,  legit,  or  noji  legit,  and  he  answered  again, 
sometliing  angrily,  legit.  Then  I  bid  the  clerk  of 
the  assizes  not  to  record  it :  and  I  told  the  }iarson 
he  was  not  the  judge  whether  he  read  or  no,  but  a 
ministerial  officer,  to  make  a  true  report  to  the 
Court.  And  so  I  caused  the  prisoner  to  be 
brouglit  near,  and  delivered  him  the  book,  and 
then  tlie  prisoner  confessed  he  could  not  read ; 
whereupon  I  told  tlie  parson  he  had  reproached 
his  function,  and  unpreached  more  that  day  than 
he  could  preach  up  again  in  many  days ;  and 
because  it  was  his  personal  offence  and  misde- 
meanor, I  fined  him  five  marks,  and  did  not  fine 
the  bishnp,  as  in  case  ho  had  failed  tf)  provide  an 
ordinary."  ^ 

DTSTRETION  is  a  science  or  understanding 
to  discern  between  falsity  and  truth,  be- 
tween wrong  and  right,  between  shadows  and 
substance,  between  equity  and  colorable  glosses 
and  ])retences,  and  not  to  do  according  to  Ihcir 
wills  and  jirivate  affections;  for  as  one  saith.  Talis 
discretio  discretionem  confundit.  ^ 

1  Kel.51;  82,  3(1  od. 

■''  Rookc's  Case,  5  Rep.  100  a. 


132  ODDITIES    OF  THE  LAW. 

ONE  of  tlio  most  remarkable  of  the  curiosities 
ill  the  "books  of  Reports"  is  the  case  of 
Babcock  v.  IMontgomery  Comity  Mut.  Ins.  Co.  4 
N.  Y.  326.  The  case  decides  that  where  a  buikl- 
ing  was  insured  generally  against  loss  by  fire,  and  in 
a  separate  clause  in  the  policy  the  insurers  were 
declared  liable  for  fire  by  lightning,  no  lial)ility 
attaches  for  a  loss  occasioned  by  tlie  building 
being  struck  by  lightning,  prostrated,  and  de- 
stroyed, but  no  ignition  or  combustion  taking 
place.  The  extent  and  variety  of  the  allusions  in 
the  opinion  to  the  subject  under  discussion  are 
certainly  luiiqne.  Tlie  i)oint  was  to  determine 
whether  "lightning"  is  "fire,"  tlic  i)laintiff  con- 
tending that  destruction  by  lightning  in  any  man- 
ner is  a  destruction  by  fire.  Mr.  Justice  Ilurllnit 
alludes  to  three  passages  in  the  Bible,  of  which 
the  passage  from  Job  i.  16  is  the  most  noteworthy  : 
"  The  fire  of  God  is  fallen  from  heaven,  and  hath 
burned  up  the  sheep  and  the  servants,  and  con- 
sumed them."  Allusions  are  made  to  the  doctrines 
of  Seneca,  the  Stoics,  and  Epicureans.  Quotations 
are  made  from  ^Milton's  "  Paradise  Lost,"  and  from 
Byron's  "  Childe  Harold."  The  scientific  treatises 
are  examined;  and  the  names  of  Descartes,  Harris, 
Dr.  Lardner,  Franklin,  Faraday,  and  Metcalf,  ap- 
pear in  the  discussion.  A  few  law  cases  are  cited ; 
and  the  judge  comes  to  the  conclusion  that  "  Elec- 
tricity, caloric,  or  heat  may  so  act,  without  produ- 


ODDITIES    OF  THE  LAW.  133 

cing  fire,  as  to  cause  great  injuries  to  property ; 
but  these  are  not  embraced  by  an  insurance 
against  fire  alone." 

IN  the  great  case,  Bartonshill  Coal  Company  v. 
Reid  and  ]McGuire,'  who  were  both  killed  in 
the  working  of  a  mine  by  the  negligence  (f  a 
fellow-servant  employed  in  the  same  ci.mmon 
work,  the  reporter  quaintly  observes :  "  Reid  and 
jMcGuire  were  both  victims  of  the  same  accident, 
which,  though  melancholy,  has  settled  the  law," 
—  doubtless  a  great  satisfaction  to  the  public,  if 
not  to  Reid  and  ]McGuire. 


"  rr^IIE  last  time  I  opened  Statham's  Abridg- 
-L  ment,''  says  Fuller,  "  I  liglited  on  this  pas- 
sage :  '  ]\Iolendinarius  de  INIatlock  tollavit  bis,  cb 
quod  ipse  audivit  Rectorem  de  eadem  villa  dicere  in 
Dominica  Ram.  Palm.  Tolle,  tolle.' ^  'Theniiner 
of  Matlock  took  toll  twice,  because  he  lieard  the 
rector  of  the  parisli  read  on  Palm  Sunday,  Tolle, 
i.e.,  crucify  him,  crucify  him.'  ^  But  if  this  be  the 
fruit  of  Latin  service,  to  encourage  men  in  felony, 
let  ours  be  read  in  plaiu  English."  ^ 

1  .1  >rarqiiocii,  200,  301   note.     Quoted   in  Gilman  v.  Eustcru 
Railroad  Corporation,  10  Allon,  p.  2-'>7. 

2  Statliani,  Tit.  Toll.,  last  case  of  tlie  Title. 
8  Tln!  Gospel  api)oiiite'I  for  tlio  day. 

*  'Worthies,  Derbyshire,  vol.  I.  p.  250,  cd.  ISll. 


134  ODDITIES    OF  THE  LAW. 

MR.  DUNNING,  fifterwards  Lord  AsLbiirton, 
was  stating  tlic  law  to  a  jury  at  Guildhall, 
when  Lord  Mansfield  interrupted  him  by  saying, 
"If  that  be  hnv,  I  "11  go  home  and  burn  my  books." 
—  "My  Lord  "  replied  Dunning,  "you  had  better 
go  home  and  read  them." 


IF  once  a  man  indulges  himself  in  murder,  A'ery 
soon  he  comes  to  think  little  of  robbing  ;  and 
from  robbing  he  comes  next  to  drinking  and 
Sabbath -breaking,  and  from  that  to  incivility 
and  procrastination.  Once  begin  upon  this  down- 
ward path,  you  never  know  where  you  are  to  stoj"). 
Many  a  man  has  dated  his  ruin  from  some  murder 
or  other  that  perhaps  he  thought  little  of  at  the 
time.  —  De  Quincey. 

IN  a  recent  case,  in  which  the  indictment  "  sur- 
passed in  vagueness  and  uncertainty  any  pre- 
cedent to  be  found  in  the  books,"  Mr.  Justice 
Fitzgerald  observed :  "  A  practice  has  recently 
prevailed  of  shaping  indictments  in  so  very  gen- 
eral a  form  as  to  cast  the  smallest  burden  of  proof 
on  the  prosecutor,  in  that  they  may  be  all  right, 
but  the  prosecutor  has,  in  the  present  instance, 
finessed  too  much." ' 

1  "White  V.  The  Queen,  I.  R.  10  C.  L.  536. 


ODDITIES    OF  THE  LAW.  135 

T  was  aeeitled,  so  earl}'  as  the  reign  of  Plenry 
V.  tliat  a  contract  imposing  a  general  restraint 
on  trade  is  void.  Indeed,  Hull,  J.  flew  into  a 
passion  at  the  very  sight  of  a  bond  imposing  such 
a  condition,  and  exclaimed,  with  more  fervor  than 
decency,  "  A  ma  intent  vous  purres  aver-  demurre 
sur  luy  que  Tobligation  est  voide  eo  que  le  condi- 
tion est  encounter  common  ley,  et  per  Dieu,  si  le 
plaint  iff  f lilt  icy.,  il  irra  at  prison  tanque  il  ust  fait 
fine  au  Roy.''''  ^ 

-  ♦  ■  »  . 

"  "FT  has  been  said  that  circumstantial  evidence 
J-  ii  to  be  considered  as  a  chain.,  and  each  piece 
cf  evidence  as  a  link  in  the  chain  ;  but  that  is 
not  so,  for  then,  if  any  one  link  broke,  the  chain 
■would  fall.  It  is  more  like  the  case  of  a  rope 
composed  of  several  cords.  One  strand  of  the 
cord  might  be  insufficient  to  sustain  the  weight, 
but  three  stranded  together  may  be  quite  of  suf- 
ficient strength."  2 

SCROGGS,  Chief  Justice.  —  "As  anger  Joes 
not  become  a  judge,  so  neither  doth  pity  •  for 
one  is  the  mark  of  a  foolish  woman,  as  the  other 
is  of  a  I'nissionate  man."  ^ 

'  Year  Book,  2  Henry  V.  5,  20,  cited  in  11  Rep  1),  ami  in  the 
Note  to  Mitdiel  v.  Reynolds.  1  Smith  L.  C.  432,  7th  London  cd. 

2  Pur  Pollock,  C.  B,  in  Regina  v.  Exall,  4  Foster  &  Fiulason, 
929. 

8  Thy  King  v.  JoLusou,  2  Show.  4. 


136  ODDITIES   OF  THE  LAW. 

SIR  WILLIAM  BLACKSTONE,  wrote  that 
iiccumplislied  sclujur,  Miilcjiie,  us  Sir  William 
Scott  of  the  Commons  observed  to  me  a  few  days 
ago,  was  c:f;tremely  irritable.  lie  was  the  only 
mail,  my  informant  said,  he  had  ever  kiuAvn  who 
acknowledged  and  lamented  his  bad  temper.  lie 
was  an  accomplished  man  in  very  various  depart- 
ments of  science,  with  a  store  of  general  knowl- 
edge. He  was  particularly  fond  of  architecture, 
and  had  written  upon  that  subject.  The  notes 
which  he  gave  me  on  Shakespeare  show  him  to 
have  been  a  man  of  excellent  taste  and  accuracy, 
and  a  good  critic.  The  total  sum  which  he  made 
by  his  "  Commentaries,"  including  the  profits  of 
his  Lectures,  the  sale  of  the  books  while  he  kept 
the  copyright  in  his  own  hands,  and  the  final  sale 
of  the  proprietorship  to  jMr.  Cadell,  amounted  to 
fourteen  thousand  pounds.  Probably  the  book- 
seller in  twenty  years  from  the  time  of  that  sale 
will  clear  ten  thousand  pounds  b}'  his  bargain,  and 
the  book  prove  to  be  an  estate  to  his  heirs. 

Blackstone  made  six  hundred  pounds  a  year  by 
his  professorship  and  Lectures,  which,  however,  he 
thought  it  wise  to  relinquish  for  the  chance  of 
succeeding  in  Westminster  Hall.  Not  having 
acquired  a  facility  of  expression,  nor  promptness 
of  applying  his  law  by  early  practice,  he  Avas 
alwa^'s  an  embarrassed  advocate.  Tliere  Ave  re 
more   new  trials   granted   in  causes  Avhich  came 


ODDITIES   OF  THE  LAW.  187 

before  liim  on  circuit  than  were  granted  on  the 
decisions  of  any  other  judge  who  sat  at  Westmin- 
ster in  his  time.  The  reason  was,  that,  being 
extremely  diffident  of  his  opinion,  he  never  sup- 
ported it  with  much  warmth  or  pertinacity  in  the 
court  above,  if  a  new  trial  was  moved  for.  With 
the  little  failings  already  mentioned,  he  was  one  of 
the  finest  writers  and  most  profound  lawyers  that 
England  has  produced,  considering  law  merely  as 
a  science.  He  was  also  a  strictly  conscientious, 
honest  man.  In  his  "  Commentaries "  he  was 
much  indebted  to  Hall,  and  Wood  (particularly 
the  latter)  for  the  method  and  arrangement  he 
has  (observed ;  but  the  perspicuit}',  the  vigor,  the 
luminous  statement,  the  elegant  illustration,  and 
the  classical  grace  by  which  his  "  Commentaries  " 
are  so  eminently  distinguished,  were  all  his  own.' 


A  TEDIOUS  preacher  had  preached  the  assize 
sermon  before  Lord  Yelverton.  He  came 
down,  smiling,  to  his  lordship,  after  the  service, 
and,  expecting  congratulations  on  his  effort,  asked, 
''Well,  my  lord,  how  did  you  like  the  sermon?" 
—  "Oh  I  most  wonderfully,"  rc'iilied  Yelverton. 
••  Ii  was  like  the  peace  of  (iod:  it  passed  all  under- 
standing, and,  like  his  mercy,  I  thought  it  would 
have  endured  forever." 

1  Maloniana,  from  Piior's  Life  of  Muloiie,  p.  431. 


138  ODDITIES   OF  THE  LAW. 

THE  famous  judgment  of  Saiicho  Panza,  ac- 
(juittiiig  tlie  herdsman  charged,  with  rape,  was 
founded  on  the  ascertained  fact  that  the  prosecu- 
trix successfully  resisted  the  attempt  to  take  her 
purse,  which  the  accused  made  by  order  of  the 
Court.  "Sister  of  mine,"  said  honest  Sancho  to 
the  forceful  but  not  forced  damsel,  "  liad  you 
sh(Avn  the  same,  or  but  half  as  much,  courage  and 
resolution  in  defending  3-our  chastity  as  ycju  have 
shown  in  defending  your  money,  the  strength  of 
Hercules  could  not  have  violated  you."  ^ 


rr^WO  men  had  been  convicted  at  Chester  of 
-L  the  most  atrocious  murder  of  a  magistrate  ; 
but  a  dispute  arose  whether  the  sentence  against 
them  was  to  be  carried  into  effect  by  the  sherifl:  of 
the  count}'  of  Chester,  or  by  the  sheriffs  of  the  city 
of  Chester.  All  the  functionaries  refusing  to  act, 
years  might  cla})se  before  this  dispute  could  be 
legally  determined ;  and  till  then  the  murderers 
could  not  be  made  to  expiate  their  offence  under 
the  sentence  originally  pronounced  against  them. 
There  was  a  great  outcry  by  reason  of  the  law 
being  thus  defeated.  Lord  Campbell,  then  Attor- 
ney General,  boldly  brought  the  convicts  to  the 
bar  of  the  King's  Bench,  and  prayed  that  execu- 

1  Don  Quixote,  part  2,  book  3,  ch.  1-3,  quoted  iu  1  Taylor  Ev. 
§  215,  7tb  ed. 


ODDITIES   OF  THE  LAW.  139 

tion  should  be  awarded  against  them  by  the  judges 
of  that  court.  After  a  demurrer  and  loug  argu- 
ment, they  were  ordered  to  be  executed  by  the 
marshal  of  the  King's  Bench,  at  Saint  Thomas-a- 
Waterings  in  the  borough  of  Southwark,  aided  by 
the  sheriff  of  Surrey,  —  a  form  of  proceeding  wliich 
liad  not  been  resorted  to  for  many  ages.  The 
execution  took  place  accordingly,  amidst  an  im- 
mense assemblage,  not  only  from  the  metropolis, 
but  from  remote  parts  of  the  kingdom.^ 


AT  a  club  dinner  of  artists  a  barrister  present, 
liaving  liis  health  drunk  in  connection  with 
the  law,  began  an  embarrassed  answer  by  saying 
that  he  did  not  see  how  the  law  could  be  con- 
sidered one  of  the  arts.  Jerrold  quickly  jerked 
in  the  word  black,  and  sent  the  company  into  con- 
vulsions. 


Li^OR  m.odern  law,  Sergeant  Hill  had  supreme 
-L  contempt;  and  I  have  heard  him  observe 
that  the  greatest  service  that  could  be  rendered 
the  country  would  be  to  repeal  all  the  statutes, 
and  burn  all  tlic  Reports  which  were  of  a  later 
date;  than  tlie  Revolution.^ 

1  Rex  V.  fiarside  and  ^Sloslcy,  2  A.  &  E.  2GG.    Lilc  of  Lord 
Caiiipljell,  vol.  II.  pp.  58,  50. 

8  Rcniilly,  Memoirs,  vol.  I.  p.  72. 


140  ODDITIES  OF  THE  LAW. 

IN  the  case  of  Dolan  v.  Kavanagli,  I.  R.  10  C.  L. 
1G6,  the  defendant  was  convicted  for  having  ex- 
posed goods  for  sale  outside  Ids  shop  in  a  street  in 
the  city  ;  but  the  place  Avhere  they  were  so  exposed 
was  part  of  the  premises  of  the  defendant,  over 
whicli  the  public  had  no  right  to  pass.  It  was  held 
that  the  defendant  was  guilty  of  an  offence  within 
the  St.  5  Vict.  ch.  24,  §  17.  The  following  is  the 
judgment  of  Dowse,  B. :  — 

"  In  this  case  the  facts  are  beyond  dispute.  A 
private  dwelling-house  has  been  converted  into  a 
shop.  The  area  has  been  covered  over,  and  the 
iron  railings  next  the  street  removed ;  the  railing 
at  right  angles  to  the  house  has  been  left  stand- 
ing. On  this  covered  area,  flagfo-ed  over  and 
raised  a  little  above  the  footpath  proper,  goods 
have  been  exposed  for  sale.  The  police,  who  are 
afflicted  with  fits  of  periodical  activity,  have  sum- 
moned the  defendant  for  an  offence  under  the  5 
Vict.  ch.  24,  §  17.  That  section  in  effect  enacts 
that  any  person,  mIio  in  an}'-  street  or  public  j)lace 
exposes  for  sale  any  thing  on  the  outride  of  his 
house  or  shop,  shall  be  subject  to  the  penalty  men- 
tioned in  tliis  section.  Can  any  one  doiibt  tliat 
the  place  wdiere  these  goods  were  exposed  for 
sale  w'as  in  a  street?  It  is  said  that  the  covered 
area  formed  no  portion  of  the  footpath,  and  was 
never  dedicated  to  the  use  of  the  public  ;  that  it 
v/as  in  fact  part    of    the    defendant's    premises. 


ODDITIES   OF  THE  LAW.  141 

That  may  he ;  it  is  not  the  less  in  a  street  on  that 
account.  In  one  sense  the  street  means  the  road- 
way and  footpath ;  in  another  sense  it  has  a  more 
extended  meaning.  The  house  itself  is  in  Talbot 
Street.  The  defendant  lives  in  that  street,  yet  he 
does  not  take  up  his  abode  in  the  roadway  or  on 
the  footpath.  Giving  a  reasonable  construction 
to  this  statute,  no  one  can  doubt  that  these  goods 
were  exposed  for  sale  in  a  street.  If  the  steps  of 
a  hall-door  are  in  the  street,  this  place  is  in  the 
street ;  and  in  my  opinion  it  would  be  an  abuse 
of  terms  to  use  the  word  '  street '  in  a  sense  that 
would  exclude  the  flagging  in  front  of  a  house 
from  the  operation  of  the  section.  It  is  possible 
to  suggest  cases  where  the  flagging  in  front  of  a 
house  would  not  be  in  a  street,  though  the  house 
itself  may  face  a  public  thoroughfare.  "When 
these  cases  come  before  us,  we  shall  be  able  to 
deal  with  them.  The  only  remaining  question  is, 
"Were  these  goods  exposed  for  sale  on  the  outside 
of  the  sliop?  It  is  here  that  the  poetical  imagina- 
tion of  tlie  counsel  for  the  defendant  has  run  riot. 
He  says  this  place  is  not  on  tlie  outside  of  the 
sliop.  "Wliere  is  it,  then?  Is  it  in  the  inside  of 
tlie  shop?  lie  says  it  is;  and  it  is  so  because  he 
buihls  an  imaginary  wall  from  tlie  extreme  edge 
of  the  covered  space,  which  is  all  the  defendant's 
own  ground,  up  to  tlie  sky,  and  when  this  wall  is 
built,  he  says  it  is  the  outside  wall  of  the  shop,  and 


142  ODDITIES   OF  THE  LAW. 

the  goods  are  not  tlieii  cx})oso(l  on  tlio  outside  of 
the  shop.  When  tliis  av;i11  is  built  of  stoue,  or 
I)rick,  or  timber,  or  any  other  substance  of  a  tangi- 
ble Idnd,  there  will  be  no  exposure  for  sale  on 
the  street,  and  that  which  was  outside  will  become 
inside  ;  but,  until  that  is  done,  I  decline  to  con- 
struct a  non-existent  wall,  and  to  construe  an  Act 
of  PfLrliament  by  giving  to  '  airy  nothings  a  local 
habitation  and  a  name/  When  'Snout,  the  tinker' 
represented  a  wall,  lie  brought  with  him  some 
rough-cast  and  stone ;  we  are  to  be  more  fantastic 
than  the  '  Midsummer  Night's  Dream,'  and  to 
build  a  wall  without  even  the  smallest  thread  of 
gossTvUier  to  assist  us.  If  we  build  the  wall,  how 
long  is  it  to  endure  ?  Till  this  case  is  over ;  and 
then,  in  this  at  least  resembling  the  wall  of  the 
poeo,  it  will  say  :  — 

'  Tims  have  I,  wall,  my  part  discharged  so ; 
And,  being  done,  thus  wall  away  doth  go.' 

*'I  will  be  no  party  to  this  castle-building  in  the 
air.  If  the  person  convicted  here  wants  an  un- 
siil^stantial  wall,  let  him  have  unsubstantial  hams 
and  bacon  exposed  for  sale.  If  he  gives  merely  a 
Br.rmecide  feast  to  his  customers  congregated  on 
the  footpath,  he  need  never  fear  the  penalties  con- 
tained in  that  very  jn-osaic  statute  entitled  An  Act 
for  Improving  the  Dublin  Police.  I  can  see  no 
difficulty  in  this  case.     If  I  give  loose  reins  to  my 


ODDITIES   OF  THE  LAW.  143 

imagination,  I  do  not  know  where  I  can  stop.  If 
inclined  to  be  poetical,  the  last  snbject  I  shall 
choose  for  my  muse  will  be  any  thing  connected 
with  the  streets  of  Dublin." 


J'N  the  celebrated  judgment  of  Lord  Denman  in 
-  O'Connell  v.  The  Queen,  is  this  passage  :  "  If 
it  is  })0ssible  that  such  a  practice  as  that  which 
hp,s  taken  place  in  the  present  instance  should  be 
allowed  to  pass  without  a  remedy,  trial  by  jury 
itf'.elf,  instead  of  being  a  security  to  persons  who 
ar3  accused,  will  be  a  delusion.,  a  mockery^  and  a 
snare."  ^ 


NOBODY  was  more  bitterly  witty  than  Lord 
Ellenborough.  A  young  lawyer,  trembling 
Avith  fear,  rose  to  make  liis  first  speech,  and 
began,  "My  Lord,  my  unfortunate  client — my 
herd,  my  unfortunate  client  —  my  Lord  — "  — 
"(Jo  on,  sir,  go  on,"  said  Lord  Ellenborough:  "as 
far  as  you  have  proceeded  hitherto,  the  Court  is 
entirely  with  you." 

1  11  Clark  &  Finnelly,  at  p.  351.  Mr.  Justice  Denman  add-s  a 
curious  circtun.stance.  "Walking;  down  with  his  fathor  from  the 
Hoii.se  after  tlie  delivorj-  of  the  judgment,  and  praisinp:,  among 
otlicr  tilings,  the  celehratcd  words,  "  a  mockery,  a  delnsiDU.  and 
a  snare,"  "  Ah,"  .said  Lord  Denman,  "I  am  sorry  I  ii.sed  llioso 
wordii:  they  were  not  judicial." — Memoir  of  Lord  Denmau, 
vol.  II.  p.  183  note. 


144  ODDITIES   OF  THE  LAW. 

"TTT^ITII  respect  to  children,  no  precise  age  is 
^  ▼  fixed  by  law  within  which  they  are  abso- 
lutely excluded  from  giving  evidence,  on  the 
presumption  that  tliey  have  not  sufficient  under- 
standing. Neither  can  any  precise  rule  be  laid 
down  respecting  the  degree  of  intelligence  and 
knowledge  which  will  render  a  child  a  competent 
witness.  In  all  questions  of  this  kind  much  must 
ev3r  depend  upon  the  good  sense  and  discretion  of 
the  judge. 

The  utter  want  of  discretion  in  dealing  Avitli  this 
subject,  wliicli  lias  sometimes  been  evinced  by  the 
inferior  functionaries  of  the  law,  is  admirabh"  ridi- 
culed by  ]Mr.  Dickens,  in  his  "  Bleak  House."  A 
little  crossing-sweeper  being  brought  up  before  a 
coroner  to  give  evidence  on  an  inquest,  the  narra- 
tive thus  proceeds  :  "  'Name  Jo.  Nothing  else  that 
he  knows  on.  .  .  .  Knows  a  broom's  a  broom,  and 
knows  it's  wicked  to  tell  a  lie.  Don't  recollect 
who  told  him  about  the  broom,  or  about  the  lie, 
but  knows  both.  Can't  exactly  say  what'U  be 
done  to  him  arter  he's  dead  if  he  tells  a  lie  to  the 
gentleman,  but  believes  it'll  be  something  very 
bad  to  punisli  him,  and  sarve  him  right ;  and  so 
he'll  tell  the  truth.'  —  'This  won't  do,  gentle- 
men,' says  the  coroner,  with  a  melancholy  shake 
of  the  head.  '  Don't  you  think  you  can  receive 
his  evidence,  sir?'  asks  an  attentive  juryman, 
*Out  of  the  question,'  says  the   coroner.      'You 


ODDITIES   OF   THE  LAW.  145 

have  heard  tlie  boy :  cant  exactly  say  won't  do, 
you  know.  We  can't  take  that  in  a  court  of  jus- 
tice, gentlemen.  It's  terrible  depravity.  Put  the 
boy  aside.'  Boy  put  aside  to  the  great  edification 
of  the  audience,  especially  of  little  Swills  the 
comic  vocalist." 

IF  a  man  robs  his  fellow-traveller,  and  is 
indicted  for  so  doing,  the  allegation  that  he 
Ijccame  the  companion  of  his  victim  with  a  pre- 
conceived design  to  rob  him  is  wholly  imma- 
terial." ^ 


IN  the  case  of  Prohibitions  Del  Roy,  12  Rep.  64, 
65,  is  this  passage  :  "  A  controversy  of  land  be- 
tween parties  was  heard  by  the  King,  and  sentence 
given,  which  was  repealed  for  this,  that  it  did 
belong  to  the  common  law.  Then  the  King  said 
that  ho  thought  the  law  was  founded  upon  reason, 
and  tliat  lie  and  others  liad  reason  as  well  as  the 
Judges:  to  which  it  was  answered  by  me,  that  true 
it  Avas,  that  God  had  endowed  his  Majesty  with 
excellent  science,  and  great  endowments  of  natnre  ; 
but  his  iMajesty  was  not  learned  in  the  laws  of  his' 
realm  of  England  ;  and  causes  which  concern  the 
life,  or  inlieritance,  or  goods,  or  fortunes  of  his 
subjects,  are  not  to  be  decided  \)\  nalnral  reason, 
but  by  the  artificial  reason  and  judgment  of  law. 

1  Moxori  V.  Payne,  L.  It.  8  CL.  bbl,  per  James,  L.  J. 


146  ODDITIES   OF  THE  LAW. 

whicli  law  is  an  act  which  requires  long  study 
and  experience,  before  that  a  man  can  attain  to 
the  cognizance  of  it;  and  that  the  law  was  the 
golden  met-wand  and  measure  to  try  the  causes 
of  the  subjects;  and  whicli  protected  his  Majesty 
in  safety  and  peace :  with  which  the  King  Avas 
greatly  offended,  and  said  that  then  he  should  be 
under  the  law,  which  was  treason  to  affirm,  as  he 
said;  to  which  I  said,  that  Bracton  saith,  quod 
Rex  non  debet  esse  sub  liomine,  sed  sub  Deo  et 
lege.  Bract.  74." 


"  TF  we  see  one  against  whom  there  is  a  judgment 
-L  of  this  court  walk  in  Westminster  Hall,  we 
may  send  our  officer  to  take  him  up,  if  the  plaintiff 
desire  it,  without  a  writ  of  execution."  —  Per  Holt, 
Chief  Justice.* 


IN  Nash  v.  Battersby,  2  Ld.  Raym.  98G  and  G 
]\Iod.  80,  the  plaintiff  declared  with  the  addi- 
tion of  gentleman.  The  defendant  pleaded  in 
abatement  that  the  plaintiff  was  no  gentleman. 
The  plaintiff  demurred,  and  it  was  ill ;  for,  said 
the  Court,  it  amounts  to  a  confession  that  the 
plaintiff  is  no  gentleman,  and  then  not  the  person 
named  in  the  count.  He  should  have  replied  that 
he  is  a  gentleman. 

1  7  Mod.  52. 


ODDITIES   OF  TIlE  LA]V.  147 

BROUGHAM,  speaking  of  the  salary  attached 
to  a  new  judgeship,  said  it  was  all  moon- 
sliine.  ^  Maybe,"  said  Lord  L3'ndhurst ;  '•  but 
Fve  a  notion,  that,  moonshine  or  not,  you  would 
like  to  see  the  first  quarter  of  it." 


"  'TT'TE  easily  believe  what  we  wish  to  be  true," 
»  »  said  Mr.  Justice  Grier  in  a  charge  to  a 
jury.  ''We  are  prone  to  be  satisfied  with  light 
proof,  or  any  fallacy,  in  favor  of  a  preconceived 
(jpinion,  prejudice,  or  feeling.  When  we  suffer 
ourselves  to  be  thus  tempted,  we  act  as  tyrants, 
not  as  judges.  In  the  midst  of  our  virtuous  indig- 
nation against  crime,  we  first  assume  it  has  been 
committed,  and  then  seek  for  arguments  to  con- 
firm, not  our  judgments,  but  our  prejudice.  '  Tri- 
fles light  as  air'  tlien  become  'strong  as  proofs  of 
holy  writ.'  C'iicumstances  which  to  an  unpreju- 
diced mind  are  just  as  com})atible  with  innocence 
as  guilt,  wliich  at  best  could  only  raise  a  suspicion, 
are  set  down  as  conclusive  evidence  of  crime. 
Those  who  sit  in  judgment  over  men's  riglits, 
whether  as  courts  or  jurors,  should  beware  of  tliis 
natural  weakness  to  which  we  are  almost  all  of  us 
subject."  ' 

"Tlic  human  understanding,"  wrote  Lord  IJacon, 

1  Turner  v.  Hand,  3  Wallune,  Jr.  llli.    The  entire  cliar^'e  is 
particularly  liuo. 


148  ODDITIES   OF  THE  LAW. 

"when  it  lias  once  adopted  an  opinion  (either 
as  being  the  received  opinion  or  as  l)eiiig  agreea- 
ble to  itself),  draws  all  things  else  to  sn})port  and 
agree  with  it.  And  though  there  be  a  greater 
immber  and  weight  (>£  instances  to  be  found  on 
the  f)thcr  side,  yet  these  it  either  neglects  and 
despises,  or  else  by  some  distinction  sets  aside  and 
rejects;  prejudging  the  matter  to  a  great  and  per- 
nicious extent  in  order  that  the  authority  of  its 
former  conclusions  may  remain  inviolate.'"  ^ 


THE  rule  which  requires  a  day  to  be  specified, 
but  does  not  require  that  day  to  be  proved, 
appears  to  rest  on  much  the  same  foundation  as 
the  argument  used  by  Corporal  Trim  in  telling  his 
unfortunate  story  of  the  King  of  Bohemia. 
"  There  was  a  certain  king  of  Bohemia,  but  in 
what  year  of  our  Lord,"  —  "I  would  not  give  a 
halfpemiy  to  know,"  said  my  Uncle  Toby. 
''  Only,  an  please  your  Honor,  it  snakes  a  story  look 
the  better  in  the  face.""  My  Uncle  Toby's  reply, 
"Leave  out  the  date  entirely,  Trim,  a  story  passes 
very  well  without  these  niceties,  unless  one  is 
pretty  sure  of  "em,"  is  founded  on  good  sense. 
Either  allege  a  date,  and  prove  it,  or  omit  it  alto- 
gether. 

^  Novum  Organum,   Apli.  XLVI.,  Works,  vol.  IV.  p.  56,  ed. 
Ellis  <&  Spudding. 


ODDITIES   OF  THE  LAW.  149 

IN  the  case  of  Musselman  v.  IMusselman,  in  the 
Indiana  Reports,  vol.  44,  p.  107,  A.D.  1873, 
we  tind  amoncj  others  the  two  foUowinir  liead- 
notes :  — 

''  Wliere  it  does  not  appear,  on  appeal,  liow 
smoking  in  court  bj  the  judge  and  attorneys  pre- 
vented a  party  from  having  a  fair  trial,  and  tlie 
party  assigning  such  conduct  as  a  ground  for  a 
new  trial  does  not  appear  to  iiave  objected  to  it, 
tliere  is  nothing  for  the  Supreme  Court  to  consider 
in  relation  to  such  conduct." 

"  The  assignment  as  a  reason  for  a  new  trial, 
'  that  tlie  Court  erred  in  sleeping,  or  sitting  with 
his  eyes  closed,  during  the  reading  of  the  Avritten 
evidence  on  the  part  of  the  plaintiff  at  tlie  trial 
of  the  cause,'  is  too  vague  and  indefinite.  If  the 
judge  were  asleep,  the  party  should  liave  ceased 
reading,  or  awakened  him  ;  if  he  sat  merely  with 
his  eyes  closed,  it  is  presumed  lie  did  so  to  hear 
the  more  acutely." 

ri^ II ERE  have  been  many  eulogies  on  trial  by 
-L  jury  ;  but  this  spoken  by  Sir  James  Mackin- 
tosh, in  his  defence  of  Jean  Peltier,  charged  with 
a  libel  on  Bonaparte,  First  Consul,  is  [)r()l)al)ly 
unsurpassed  in  beauty:  "lie  now  conies  before 
you,  perfectly  satisfied  that  an  English  juiy  is  the 
most  refreshing  j)rosj)e(:t  that  the  eye  of  accused 
innocence  ever  met  in  a  human  tribunal."  ' 

1  Mackiulosli'a  Miscellaneous  Works,  vol.  III.  p,  215. 


160  ODDITIES   OF  THE  LAW. 

rj^HE  rule  excluding  hearsay  evidence,  or  rather 
-L  the  mode  in  wliich  that  rule  is  frequently 
misunderstood  in  courts  of  justice,  is  amusingly 
caricatured  by  Mr.  Dickens,  in  his  report  of  the 
case  of  Bardell  v.  Pickwick :  — 

" '  I  believe  you  are  in  the  service  of  Mr.  Pick- 
wick, the  defendant  in  this  case.  Speak  up,  if  you 
please,  Mr.  Weller.' 

"  '  I  mean  to  speak  up,  sir,'  replied  Sam.  '  I  am 
in  the  service  o'  that  'ere  genl'man,  and  werry 
good  service  it  is.' 

"  '  Little  to  do,  and  plenty  to  get,  I  suppose  ? ' 
said  Sergeant  Buzfuz  with  jocularity. 

"'Oh!  quite  enough  to  get,  sir,  as  the  soldier 
said  ven  they  ordered  him  three  hundred  and  fifty 
lashes,'  replied  Sam. 

"  '  You  must  not  tell  us  tvhat  the  soldier,  or  any 
other  man  said,  sir,'  interposed  the  judge,  '  it's  not 
evidence.'' 

u  i  Wery  good,  my  lord,'  replied  Sam." 


A  STORY  is  told  of  one  Smith  who  was  made 
a  police  magistrate.  lie  was  a  pompous, 
stupid  man,  very  attentive  to  forms,  but  frequently 
ignorant  how  to  apply  them.  The  very  first  day 
he  sat  in  his  public  capacity  he  made  a  blunder 
that  stuck  by  him  ever  after.  A  man  was  brought 
up  before  \\\n\  for  picking  pockets.      Mr.  Smith 


ODDITIES   OF  THE  LAW.  151 

seemed  to  have  reflected  deeply,  and  prepared  a 
speech,  of  which  he  was  anxious  to  deliver  him- 
self. He  heard  the  case,  tlierefore,  with  all  the 
solemnity  of  a  trial  for  murder.  He  listened  with 
the  profoundest  attention  to  all  the  evidence,  and 
then,  taking  a  three-cornered  hat  in  his  hand,  he 
thus  addressed  the  prisoner  with  the  utmost 
gravity :  "  Thomas  Styles,  3-ou  have  been  found 
guilty,  on  the  clearest  evidence,  of  the  abominable 
crime  of  picking  pockets.  The  testimony  of  the 
witnesses  has  been  clear  and  satisfactory,  and  no 
doubt  of  your  heinous  guilt  remains.  It  now  only 
remains  for  me  to  pass  the  dreadful  sentence  of 
the  law.  The  sentence  of  the  Court  on  you  is, 
that  you  be  taken  hence  to  the  prison  at  Cold 
Bath  Fields;  that  you  be  there  confined  for  the 
space"  of  one  month,  be  once  privately  whi})ped 
bef(jre  3'ou  quit  it ;  and  (putting  on  the  hat,  and 
looking  at  the  prisoner  with  the  most  sorrowful 
solemnity)  God  have  mercy  on  your  loretched 
soul/" 


"TN  the  time  of  Henry  VI.  it  seems  not  to  have 
-L  been  a  settled  point  whether  an  action  might 
t)e  maintained  against  an  innkeeper  lor  refusing  a 
lodging;  and  it  ajipears  to  have  been  the  better 
opinion,  that  the  projjcr  remedy  was  to  complain 
to  the  ruler  of  the  vill,  or  the  constables  of  the 
place.' 

1  Year  Book,  '.','.)  Ihtu.  VI.  j..  18.    r>  Edw.  IV.  p.  2. 


152  ODDITIES   OF  THE  LAW. 

"TT'THEN  the  proceedings  have  been  entered 
*  ^  upon  record,  the  common  hiw  power  of 
amendment  ceases;  for  the  judges  at  common  law 
were  prohibited  from  alhiwing  alterations  to  be 
made  in  any  record  ;  and  indeed  several  of  them 
were,  during  the  reign  of  Edward  the  First,  se- 
verely punished  for  so  doing,  among  Avhom  the 
Lord  Chief  Justice  Hengham  was  fined,  according 
to  some,  seven  thousand,  to  otliers,  eight  hundred, 
marks,  which  sum,  as  we  are  told  by  Justice  South- 
cote,^  was  expended  in  building  a  clock-house  at 
Westminster,  with  a  clock  to  be  heard  in  the  Hall, 
—  a  circumstance  which,  as  is  observed  by  Mr.  Jus- 
tice Coleridge,  in  his  admirable  edition  of  Black- 
stone's  Commentaries,  explains  a  dictum  of  Lord 
Holt,2  Avhere  his  lordship,  refusing  to  amend  a 
record,  said,  "  He  considered  there  wanted  a  clock- 
house  over  against  the  Hall-gate."  ^ 


A  LATE  venerable  practitioner  in  a  humble 
-^^^  department  of  the  law,  who  wanted  to  write 
a  book,  and  was  recommended  to  try  his  hand  at 
a  translation  of  Latin  law-maxims  as  a  thing  much 
wanted,  was  considerably  puzzled  with  the  maxim, 
"  Catella  realis  non  j^otest  legari ; "  nor  was  he 
quite  relieved  when  he  turned  up  his  Ainsworth, 

1  3  Inst.  72.    4  Inst.  255.        2  Anon.  G  Mod.  1.30. 

8  Note  to  Roliinsou  v.  lialey,  1  Smith  L.  C.  248, 2il  London  ed. 


ODDITIES   OF  THE  LAW.  163 

and  found  that  catella  means  "a  little  pnppy-" 
There  was  nothing  for  it,  hoM^ever,  bi  t  obedience, 
so  that  he  had  to  give  cnrrency  to  the  remarkable 
principle  of  law  that  "  a  genuine  little  whelp  can- 
not be  left  in  legacy."  He  also  translated  "messis 
sequitur  sementem,"  with  a  fine  simplicity,  into 
"  the  harvest  follows  the  seedtime ; "  and  "  actor 
sequitur  forum  rei  "  he  made,  "  the  agent  must  be 
in  court  when  the  case  is  going  on."  Copies  of  the 
book  containing  these  gems  are  exceedingly  rare, 
some  malicious  person  having  put  the  author  up  to 
their  absurdity. 

— •-•-• — 

THERE  are  two  old  methods  of  paying  rent  in 
Scotland,  —  Kane  and  Carriages  ;  the  one 
being  rent  in  kind  from  the  farmyard,  the  other 
being  an  obligation  to  furnish  the  landlord  with  a 
certain  amount  of  carriage,  or  rather,  cartage.  In 
one  of  the  vexed  cases  of  domicil  which  had  found 
its  way  into  tlie  House  of  Lords,  a  Scotch  lawyer 
argued  that  a  landed  gentleman  had  shown  his 
determination  to  abandon  his  residence  in  Scot- 
land by  liaving  given  up  his  "kane  and  carriages." 
It  is  said  that  tlie  argument  went  further  than  he 
expected,  the  English  law3'ers  admitting  that  it 
was  indeed  very  strong  evidence  of  an  intended 
change  of  domicil  wlien  the  laird  not  only  ceased 
to  keep  a  carriage,  but  actually  divested  himself 
o?  liis  walking-cane. 


154  ODDITIES    OF   THE  LAW. 

WHEN  it  was  proposed  in  Parliament  to 
increase  the  judges'  salaries,  and  the 
motion  was  carried  Ij}*  one  hundred  and  sixty-nine 
to  thirty-nine,  Charles  Townshend  said  that  "  the 
Book  of  Judges  had  .been  saved  by  the  Book  of 
Numbers." 

THIS  passage  occurs  in  Sir  Vicary  Gibbs's' 
argument  in  the  Banbury  Peerage  :  -  — 
"Age  may  not  be  proof  of  impotency,  but  it 
is  evidence  of  it.  The  probability  of  the  EarFs 
begetting  a  child  at  eighty  is  very  slight,  and  it  is 
not  increased  by  the  appearance  of  another  child 
two  years  later.  Instances  have  been  adduced  of 
these  extraordinary  births ;  but  none  have  been 
cited  in  which  a  man  at  eighty-two,  having  begot- 
ten a  son,  had  concealed  the  birth  of  such  son. 
Would  not  he  seek  publication  rather  than  con- 
cealment? Besides,  at  the  birtli  of  children  in 
families  of  distinction,  it  is  generally  an  object  of 
mucii  anxiety  to  have  the  event  authenticated. 
Some  registry  is  made  of  it.  None  has  been  found 
here  after  the  most  diligent  search.  If  the  regis- 
ter is  lost,  the  date  may  always  be  supplied  by  the 
banquets  and  festivities  with  which  it  is  contem- 
poraneous.    Why,  the  whole  county  would  have 

1  At  thn  time  Attorney  General. 

2  Reported  in  an  Appendix  to  Le  Marchaut's  Gardner's  Peer- 
age, 427,  428. 


ODDITIES    OF   THE  LAW.  155 

resounded  with  tlie  ringing  of  bells  I  Yon  wonld 
have  had  processions  of  old  men  upon  the  anni- 
versary of  such  a  prodigy.  It  would  have  excited 
as  much  surprise  as  if  a  mule  had  been  brought  to 
bed  !     It  reminds  me  of  the  lines  of  Juvenal :  — 

ErgegiLini  sauctumque  virum  si  corno,  biinembri 
Hoc  monstrum  puero,  vel  mirandis  sub  aratro 
riscibus  inventis,  et  fetce  compavo  mulfe. 

.S'«/.  A7/7  G5. 

"  In  no  register,  in  no  will,  in  no  document,  is 
there  any  notice  of  this  wonderful  production. 
And  then,  not  content  with  one,  the  miracle  must 
be  multiplied.  It  was  not  enough  that  one  child 
should  be  born  to  a  man  at  eighty-two :  he  must 
have  another  when  he  was  eighty-four.  And 
Nature  consummated  her  prudigality  by  lavishing 
on  these  children  the  strength  and  vigor  which 
she  usually  denies  to  the  offspring  of  imbecility." 


TX  a  case  in  the  Court  of  Queen's  Bench,  a 
J-  jilaiiitiff,  as  soon  as  he  had  discovered  the  fact, 
a])plied  to  set  aside  a  judgment  in  his  own  favor, 
on  the  ground  of  a  mistake  having  been  made  by 
himself  in  the  amount  claime(l  and  recovered,  al- 
though tlie  debt  and  costs  liad  been  actually  i)aid 
by  tlie  defendants.  The  C'ourl,  iu  furtherance  of 
ju.'itice,  allowed  liim  to  do  so." 

1  CuniKJii  V.  KeyiioKls,  Tj  E.  &  B.  p.  301. 


15G  ODDITIES   OF  THE  LA]V. 

KELYNG  reports  a  mode  of  dealing  with  a 
prisoner  who  refused  to  pk\ad,  b}'  t\ing  his 
two  tluiiiibs  together  with  whipcord,  "that  the 
pain  of  that  might  compel  him  to  plead."'  He  says 
that  this  was  the  "  constant  practice  at  Newgate." 
In  the  particular  case  reported,  the  whipcord,  with 
the  aid  of  a  parson,  produced  the  desired  effect  in 
an  hour.i 

IN  delivering  the  judgment  of  the  Privy  Council 
in  a  recent  case,^  Sir  John  Taylor  Coleridge 
thus  eloquently  discoursed  of  the  advantages  of 
the  viva  voce  examination  of  witnesses:  "The 
most  careful  notes  often  fail  to  convey  the  evi- 
dence fully  in  some  of  its  most  important  elements, 
—  those  for  which  the  open  oral  examination  of 
the  witnesses  in  presence  of  prisoner,  judge,  and 
jury,  is  so  justly  prized.  It  cannot  give  the  look 
or  manner  of  the  witness,  his  hesitation,  his 
doubts,  his  variations  of  language,  his  confidence 
or  precipitancy,  his  calmness  or  consideration ;  it 
cannot  give  the  manner  of  the  prisoner,  when  that 
has  been  important,  upon  the  statement  of  any 
thing  of  particular  moment.  It  is,  in  short,  or  it 
may  be,  the  dead  body  of  the  evidence,  without  its 
spirit,  which  is  supplied,  when  given  openly  and 
orally,  by  the  ear  and  eye  of  those  who  receive  it." 

1  Kel.  27  ;  5i,  3d  ed. 

2  Efigina  v.  BeiUana,  L.  R.  1  V.  C.  535;  S.  C.  10  Cox  C.  C.  G25. 


ODDITIES    OF  THE  LAW.  157 

A  PEER  was  once  branded  by  mistaJce.  Sir 
-^-^  Matthew  Hale  Avrites  :  "  A  great  law3'er  liath 
been  much  bhimed  for  burning  a  peer  on  the  hand, 
that  confessed  an  indictment  for  manslaughter ; 
and  it  was  the  onl}'  error  of  note  that  that  person 
erred  in  to  my  observation." 


QUI  ha^ret  in  litera  haeret  in  cortice  is  a 
familiar  maxim  in  the  law.  "  The  letter 
killeth,  but  the  spirit  maketli  alive,"  is  the  more 
forcible  expression  of  Scripture.' 


A  STORY  is  told  of  a  house  seeming  irretriev- 
-'— ^  ably  on  fire,  until  the  flames,  coming  in 
contact  with  the  folio  Corpus  Juris  and  the 
Statutes  at  Large,  were  quite  unable  to  get  over 
this  joint  barrier,  and  sank  defeated. 


LORD  ELLEN  P,OROUrTlI  showing  some 
impatience  at  a  barrister's  speech,  the  gentle- 
man ]«aused  and  said:  ''Is  it  the  pleasure  of  the 
Court  that  I  should  proceed  with  my  statenunit?" 
—  ''Pleasure,  sir,  has  l^een  out  of  the  question  for 
a  long  time ;  but  you  may  proceed." 

1  P.T  Parkr-r,  C.  J.  In  Ilmshnw  v.  Foster, !)  I'i«-k.  :!17.     "  TIio 
letter  killeth,  but  the  .spirit  ;,'ivi,*tli  life."  —  2  Coit.  iii.  G. 


158  ODDITIES   OF   Till-:   LA  11'. 

MR.  JUSTICE  WELLS,  iu  cliargiiin-  the 
jury  ill  a  capital  case,  in  defiiiiiig  what  is  a 
reasonable  doubt,  once  said:  "A  man  might  so 
cultivate  a  doubt  as  not  to  be  able  to  believe  any 
thing ;  3-et  such  a  doubt  was  not  a  reasonable 
one." 


IN  the  case  of  Ryves  v.  The  Attorney  General, 
which  attracted  so  much  notice  a  few  years 
since,  where  Mrs.  Ryves  attempted  to  establish 
her  claim  to  royal  lineage,  this  occurrence  is  re- 
ported: "Dr.  Smith  then  i)roceeded  to  address 
the  jury  for  the  petitioner,  and  was  beginning  to 
say  that  '  on  his  honor  he  believed  his  client's  case 
to  be  wxdl  founded,'  when  the  Lord  Chief  Justice 
interfered,  and  peremptorily  said  he  'could  not 
allow  the  learned  counsel  to  pledge  his  honor  on 
his  own  belief.  To  do  st)  were  a  violation  of  the 
rules  of  the  ^jrofession,  and  a  dishonor  to  counsel.' 
Dr.  Smith  apologized."  ^ 


LORD  KENYON,  on  the  trial  of  Hadfield  for 
firing  a  loaded  pistol  at  the  King  when  sitting 
in  a  box  at  the  theatre  of  Drury  Lane,  told  the 
jury,  that,  "if  the  scales  hung  any  thing  like  even, 
it  was  their  duty  to  throw  in  a  certain  jjroportion 
of  mercy." 

1  The  North  American  Review,  Ajiril,  1871,  p.  393. 


ODDITIES    OF   THE   LAW.  159 

ANY  over-great  penalty  besides  the  acerbity 
of  it,  deadens  the  exci  iition  of  the  hxw,  — 
Lord  Bacoyi. 


^T^HE  possession  of  stolen  property  recently  after 
-*-  the  commission  of  a  theft  is  primcl  facie  evi- 
dence tliat  the  possessor  was  either  the  thief  or 
the  receiver,  according  to  the  other  circumstances 
of  the  case ;  and  this  presumption,  when  unex- 
plained either  by  direct  evidence  or  by  the  char- 
acter and  habits  of  the  possessor,  or  otherwise,  is 
usually  regarded  by  the  jury  as  conclusive.  Tliis 
presum}>tion,  which  in  all  cases  is  one  of  fact 
rather  than  of  law,  is  occasionally  so  strong  as  to 
render  lumecessary  any  direct  proof  of  what  is 
called  eiu'pus  delicti. 

Tims,  to  borrow  an  a[)t  illustration  from  ^Ir. 
JiistifC  .Maidc,  if  a  man  were  to  go  into  the  Lon- 
don Docks  quite  sober,  and  shortly  afterwards 
were  found  very  drunk,  staggering  out  of  one  of 
the  cellars  in  which  above  a  million  gallons  of 
wine  are  stored,  "•  I  think,"  says  the  learned  judge, 

—  and  most  persons  will  probably  agree  with  him, 

—  "  that  this  would  be  reasonable  evidence  that 
the  man  had  stolen  some  of  the  wine  in  the  cellar, 
though  no  proof  were  given  that  any  particular 
vat  had  licen  broached,  and  that  any  wine  had 
actually  been  missed."  ' 

»  Ilegiua  V.  Burton,  Dcaraly  C.  C.  284. 


160  ODDITIES   OF  TUE  LAW. 

IN  1692  William  Bradford  was  tried  before  two 
Quaker  judges  for  printing  an  obnoxious  pam- 
phlet. An  amusing  incident  occurred  at  the  trial. 
The  Prosecution  wished  to  prove  that  Bradford 
had  printed  the  pamphlet,  —  a  fact  of  which  there 
was  no  legal  evidence.  He  had  taken  care  that 
no  one  should  see  him  print  it.  Mr.  Attorney 
brought  in  the  form,  already  seized  by  him,  on 
which  the  pamphlet  had  been  printed.  The  dis- 
covery was  received  with  exultation  by  the  prose- 
cuting party.  Bradford  contended  rightlj-  that 
the  form  was  no  proof  against  him  until  they  had 
shown  that  he  had  printed  from  it.  Still  it  was 
put  as  proof  before  the  jurj'.  Unable,  however, 
to  read  the  matter  from  the  types,  Avithout  looking 
at  them  closely,  the  foreman  began  to  press  the 
chase  along  the  panel.  Of  a  sudden  the  quoins 
got  loose,  and  the  mass  of  type  fell  through,  a  pile 
of  indecipherable  jnf  The  evidence  had  disap- 
peared by  magic. ^ 

rriHE  keeper  of  the  jail  in  Oxford  having  in  his 
-L  custody  one  Alice  de  Droys,  condemned  for 
felony,  and  reprieved  for  pregnancy,  suffered  her 
to  go  abroad  under  the  guard  of  a  servant.  She 
making  her  escape,  the  master  was  saved  by  benefit 
of  clergy ;  but  the  servant  was  hanged.^ 

1  Mr.  J.  W.  Wallace's  Bradford  Address,  pp.  56,  57. 

2  Kennett's  Paroch.  Antiq.  vol.  I.  p.  234. 


ODDITIES   OF  THE  LAIV.  161 

IX  1841,  relative  to  tlie  trial  of  Warren  Hastings, 
Lord  Macaulay  wrote  :  "  The  result  ceased  to 
be  matter  of  doubt  from  the  thne  wlieu  the  Lords 
resolved  that  thej^  would  be  guided  by  the  rules 
of  evidence  which  are  received  in  the  inferior 
courts  of  the  realm.  Those  rules,  it  is  well  known, 
exclude  much  information  wliich  would  be  quite 
sufficient  to  determine  the  conduct  of  any  reasona- 
ble man  in  the  most  important  transactions  of 
private  life.  These  rules,  at  every  assizes,  save 
scores  of  culprits  whom  judges,  jury,  and  specta- 
tors firmly  believe  to  be  guilty.  But  when  those 
rules  were  rigidly  applied  to  offences  committed 
many  yeava  before,  at  the  distance  of  many  thou- 
sands of  miles,  conviction  was  of  course  out  of 
the  question.  AVe  do  not  blame  the  accused  and 
his  counsel  for  availing  themselves  of  every  legal 
advantage  in  order  to  obtain  an  acquittal ;  but  it 
is  clear  that  an  acquittal  so  obtained  cannot  be 
pleaded  in  bar  of  the  judgment  of  history." 


nnilE  Statute  of  IVferton,  so  called  because  the 
-■-  Parliament  or  Council  sat  at  the  Priory  of 
Merton  in  Surrey,  was  passed  in  the  twentieth 
year  of  the  reign  of  Henry  IIL  A.D.  1236.  It  is 
a  remarkable  fact  that  women  were  sunniKjncd  to 
this  council.^ 

1  Spildbury'a  Liucolu's  lun  and  Library,  pp.  200,  '201. 


162  ODDITIES   OF  TUE  LAW. 

IN  tlie  very  lieart  of  all  legal  formality  and  tech- 
nicality,—  the  Statutes  at  Large,  —  some  funny 
things  may  be  found.  The  best  that  now  occurs 
to  the  memory  is  not  to  be  brought  t.»  book,  and 
must  be  given  as  a  tradition  of  the  time  when 
George  III.  was  King.  Its  tenor  is,  that  a  bill 
which  proposed,  as  the  punishment  of  an  offence, 
to  levy  a  certain  pecuniary  penalty,  one  half 
thereof  to  go  to  his  ^lajesty,  and  the  other  half  to 
the  informer,  was  altered  in  committee,  in  so  far 
that  when  it  appeared  in  the  form  of  an  Act,  the 
punishment  was  changed  to  whipping  and  impris- 
onment, the  destination  being  left  unaltered. 


ONE  day  at  dinner,  Curran  sat  opposite  Lord 
Norbury,  who  was  famous  for  his  severity 
as  a  judge.  "Curran,"  asked  Norbury,  "is  that 
hung  beef  before  you  ?  "  —  "  You  try  it,  my  Lord," 
answered  Curran,  "  and  it's  sure  to  be." 


"~\T7^nY,  L.,  your  office  is  as  hot  as  an  oven," 
»  '      said  a  client.     "  So  it  ought  to  be,"  re- 
plied the  lawyer:  '■'•  I  make  my  bread  hereT 


A  ^ " 


ight  signifieth  law,  so   tort,  crooked  or 
wrong,  signifieth  injury." — 2  Inst.  b^. 


ODDITIES   OF  THE  LAW.  163 

HERE  is  a  brief  extract  from  a  law-paper,  for 
the  full  understanding  of  which  it  has  to  be 
kept  in  ^^ew  that  the  pleader,  beiiig  an  officer  of 
the  law  who  has  been  prevented  from  executing 
his  warrant  by  threats,  is  required,  as  a  matter  of 
form,  to  swear  that  he  was  really  afraid  that  the 
threats  would  be  carried  into  execution. 

'•  Farther  depones  that  the  said  A.  B.  said,  that, 
if  deponent  did  not  immediately  take  himself  off, 
he  would  pitch  him  (the  deponent)  down  stairs ; 
■\\liieh  the  deponent  verily  believes  he  would  have 
done. 

"  Farther  depones,  that,  time  and  place  aforesaid, 
the  said  A.  B.  said  to  deponent,  '  If  you  come 
anotlier  step  nearer,  FU  kick  you  to  hell ; '  which 
the  deponent  verily  believes  he  would  have  done." 


'•  nr  ET  this  be  the  method  of  taking  down  judg- 
-L-^  ments,  and  committinor  them  to  writino;," 
says  Lord  Bacon.  "  Record  the  cases  precisely, 
tlie  judgments  themselves  wctrd  for  word  ;  add  the 
reasons  which  the  judges  allege  f(jr  their  judg- 
ments ;  do  not  mix  up  the  authority  of  cases 
brought  forward  as  exam})les  with  the  principal 
case;  and  omit  the  perorations  of  counsel,  imlcss 
they  contain  something/  very  remarkable.'^  ^ 

'  De  Augmcntis,  bk.  VIII.  apb.  74,  vol,  V.  p.  104,  ed.  Spud- 
ding. 


164  ODDITIES   OF  THE  LAW. 

ARUNDINES  CAMI.  This  beautifully  printed 
volume  consists  of  Greek  and  Latin  transla- 
tions, chiefly  from  the  English  poets,  most  of  wliich 
are  translated  with  exquisite  skill.  Here  is  a 
specimen :  — 

LAW   AND   EQUITY. 

Law  and  Equity  are  two  things  which  God  has 
joined,  but  which  man  has  put  asunder. —  Colton. 

JUS    IXJUKIA. 

Justitiam  Xumen  junxit  cum  Lege ;  seel  eheu  I 
Quas  junxit  Numen,  dissociavit  Honio. 


IN  Co>nroNWEALTH  V.  ]\Ierriam,  14  Pick.  518, 
wliich  was  an  indictment  for  adultery,  it  was 
held  that  other  instances  of  improper  familiarity 
between  the  defendant  and  the  same  woman  might 
be  given  in  evidence  to  corroborate  the  witness. 
But  such  evidence  is  rejected,  the  Court  say, 
"  where  it  tends  to  show  a  substantial  act  of  adul- 
tery on  a  different  occasion."  ^ 


AN  Irish  crier  l)eing  ordered  to  clear  the  court 
did  so  by  this  announcement :  "  Now,  then, 
all  ye  blackguards  that  isn't  laivyers^  must  lave  the 
coort." 

1  Thayer  v.  Thayer,  101  Mass.  112. 


ODDITIES    OF   THE  LAW.  165 

IX  Walpole's  "  Noble  Authors  "  is  recorded  an 
anecdote  of  the  third  Earl  of  Shaftesbury. 
Attempting  to  speak  on  the  bill  for  granting 
counsel  to  prisoners  in  cases  of  high  treason,  he 
was  confounded,  and  for  some  time  could  not 
proceed ;  but  recovering  himself,  he  said  :  "  Wliat 
now  liappened  to  him  would  serve  to  fortify  the 
arguments  for  the  bill  —  if  he,  innocent,  and  })lead- 
ing  for  otliers,  was  daunted  at  the  augustness  of 
sucli  an  assembly,  what  must  a  man  be  who  should 
plead  before  them  for  his  life  ?  " 


"TT"niEX  Sir  Thomas  ]More  was  Lord  Chancel- 
*  '  lor,  he  enjoined  a  gentleman  to  pay  a  good 
round  sum  of  money  unto  a  poor  widow  whom  he 
liad  oppressed  ;  and  the  gentleman  said :  "  Then  I 
do  hope  your  lordship  will  give  me  a  good  long 
day  to  i)ay  it."  —  "•  You  shall  have  your  request," 
said  Sir  Thomas.  "  Monday  next  is  St.  Barnabas 
Day,  the  longest  day  in  all  the  year ;  pay  her  then, 
or  else  yuu  shall  kiss  the  Fleet."  ^ 


nrX  18.S8  tlie  vulgar  orror  lliat  an  innkeeper  might 
■^    (h'taiii  tlie  person  of  liis  guest  until   i»aynient 
of  his  bill,  was  exploded  by  the  case  of  Sunbolf  v. 
Alford,  3  M.  &  W.  248. 

1  CauideirH  Britanuia,  p.  300,  cd.  1870. 


166  ODDITIES   OF  THE  LAW. 

IN  a  case  in  the  Year  Books,  22  &  23  Edward  I. 
p.  448,  a  counsel  makes  a  very  apposite  Scrip- 
tural quotation.  Metingham,  Chief  Justice,  says: 
"  If  my  vilein  beget  a  child  on  my  land,  which  is 
vileinage,  and  the  child  so  begotten  go  out  of  the 
limits  of  my  land,  and  six  or  seven  or  more  years 
afterwards  return  to  the  same  land,  and  I  find 
him  in  his  own  nest  at  his  own  hearth,  I  can  take 
him  and  tax  liim  as  my  vilein  ;  for  the  reason  that 
his  return  brings  him  to  the  same  condition -as 
he  was  in  when  he  went."  Heiham  of  counsel 
responds  :  "  He  fell  into  the  pit  which  he  hath 
digged." 

THE  defendant  charged  tlie  plaintiff  with  hav- 
ing attempted  to  burn  the  defendant's  house. 
Wray,  C.  J.,  held  that  the  words  were  actionable, 
assigning  generally  as  the  reason,  that  "by  such 
speech  the  plaintiff's  good  name  is  impaired."  ' 


AN  Irishman  swearing  the  peace  against  his 
three  sons  thus  concluded  his  affidavit : 
"And  this  deponent  farther  saith,  that  tlic  only 
one  of  his  children  wlio  showed  liim  any  real  filial 
affection  was  his  youngest  son  Larry,  for  he  7iever 
itruek  him  when  he  was  dou'n.'^ 

1  Edwards'  Case,  Cro.  Eliz.  6. 


ODDITIES   OF  THE  LAW.  167 

OX  the  trial  of  Spencer  Cowper  for  murder, 
A.D.  1699,1  Dr.  Crell,  a  physician,  in  the 
course  of  his  testimon}',  addressing  the  Court, 
Baron  Hatsell  said  :  — 

"Xow,  I  will  give  you  the  opinion  of  several 
ancient  authors." 

Baeox  Hatsell.  —  "  Tell  us  your  own  obser- 
vations." 

Dn.  Crell.  —  "  It  must  be  reading,  as  well  as 
a  man's  own  experience,  that  will  make  any  one  a 
physician ;  for  without  the  reading  of  books  of 
that  art,  the  art  itself  cannot  be  attained  to ; 
besides,  I  humbly  conceive  that  in  such  a  diffi- 
cult case  as  this  we  ought  to  have  a  great  defer- 
ence for  the  reports  and  opinions  of  learned  men. 
Neither  do  I  see  any  reason  why  I  should  not  quote 
tlie  fathers  of  my  profession  in  this  case  as  well  as 
you  gentlemen  of  the  long  robe  quote  Coke  upon 
Littleton  in  others." 


"FN  Jenkins's  Centuries  it  is  said  :  "  A,  a  woman 
-L  of  twelve  years  of  age,  marries  B,  of  thirteen 
years  of  age ;  A.  has  issue ;  this  is  a  bastard  in 
our  law.  Yet  some  write  that  Solomon  begat 
liehoboam  at  ten  years  of  age,  by  computation  of 
time  out  of  the  Scriptures."  ^ 

1  13  Howell  State  Trials,  1103. 

2  CVnt.  Vir.  Can.  2G.    See  also  Cent.  II.  Cas.  84,  citing  Year 
Book,  1  Henry  VI.  3. 


168  ODDITIES   OF  THE  LA  W. 

AT  a  sitting  of  the  Dublin  Court  of  Exchequer, 
liaron  llichards  found  it  necessary  to  admin- 
ister a  rebuke  to  Mr.  Whiteside,  Solicitor  General. 
Mr.  Whiteside  demanded  in  a  declamatory  man- 
ner, and  in  an  unusual  style,  that  the  Court  should 
give  its  reasons  for  the  course  taken  in  the  case, 
and  expressed  regret  that  there  was  no  appeal 
from  its  decision.  Baron  Richards  said  he  had 
too  much  reliance  upon  the  gentlemen  of  the  bar 
to  fear  that  such  a  style  of  addressing  the  Court 
would  be  adopted  as  a  precedent.  "Mr.  Whiteside 
has  referred  to  the  performance  of  my  duty  as  a 
commissioner  in  the  Incumbered  Estates  Court," 
said  the  judge ;  "  he  has  no  right  to  inflict  upon 
me  the  odium  of  his  panegyric.  I  disclaim  his 
comment,  and  reject  his  praise." 


FULBECK  gives  the  following  quaint  defini- 
tion of  arrest:  "Arrestare  is,  by  the  authority 
or  warrant  of  the  law,  to  hinder  that  either  a  man 
or  his  goods  be  at  his  own  liberty,  until  the  law  be 
satisfied." 

"  T  APPREHEND,"  said  Mr.  Justice  Cresswell, 
-^  "  that  where  in  our  law  Reports  we  find  the 
expression  '  public  policy,'  it  is  used  somewhat  in- 
accurately, instead  of  '  the  policy  of  the  law.'  "  * 

1  4  House  of  Lord  Cases,  p.  87. 


ODDITIES    OF  THE  LAW.  169 

IX  Lord  Campbell's  "Lives  of  the  Chancellors '"  ^ 
the  following  passage  occurs  in  the  account  of 
the  trial  of  Sir  Thomas  JNIore :  "  The  jur}^  biassed 
as  they  were,  seeing  that  if  they  credited  all  the 
evidence,  there  was  not  the  shadow  of  a  case 
against  the  prisoner,  were  about  to  acquit  him ; 
the  judges  were  in  dismay,  the  Attorney  General 
stood  aghast,  when  Mr,  Solicitor,  to  his  eternal 
disgrace  and  to  the  eternal  disgrace  of  the  Court 
who  permitted  such  an  outrage  on  clecenc}'',  left 
the  bar,  and  presented  himself  as  a  witness  for  the 
Crown.  Being  sworn,  he  detailed  the  confidential 
conversation  he  had  had  with  the  prisoner  in  the 
Tower  on  the  occasion  of  the  removal  of  the 
books." 

IN  Gibbon's  History  of  the  Decline  and  Fall  of 
the  Roman  Empire,  ch.  50,  it  is  stated,  that,  by 
the  law  of  Mohammed,  a  woman  could  not  be  con- 
victed of  adultery  unless  on  the  testimony  of  four 
male  witnesses  ;  and  his  successor,  the  Caliph  Omar, 
decided,  with  leference  to  tliis  law,  that  all  cir- 
cumstantial evidence,  liowever  ])roximate  and  con- 
vincing, was  of  no  avail,  and  tliat  the  four  male 
witnesses  must  liave  witnessed  the  very  act  in  the 
strictest  sen.se  of  tlie  word.  This  is  one  extreme. 
For  the  opposite  the  reader  is  referred  to  the  case 
of  Commonwealth  v.  Meriiam,  14  Pick.  518. 
1  Vol.  11.  p.  Gl,  4tli  ed.  quoted  in  1  Cush.  520  note. 


170  ODDITIES    OF   THE  LAW. 

r INHERE  are  very  many  cases  of  murder  more 
-L  venial  than  many  cases  of  manslaughter.  A 
slaps  B  in  the  face,  B  stabs  him :  this  is  man- 
slaughter. A  shoots  at  a  fowl,  intending  to  steal 
it ;  one  grain  of  shot  hits  B,  who  dies  of  lock- 
jaw a  month  after :  this  is  murder.  The  fowl,  in- 
stead of  a  hen,  is  a  wild  partridge  :  it  is  man- 
slaughter. A,  B,  C,  D,  and  E  are  stealing  apples; 
F,  the  owner  of  the  tree,  collars  A,  who  resists, 
B,  C,  D,  and  E  throw  stones  at  him,  and  the  stone 
thrown  by  D  kills  him :  this  is  murder  in  all  live. 
A  has  reason  to  think  that  B  has  seduced  his  wife ; 
runs  home,  finds  some  evidence  (though  not  con- 
clusive evidence)  of  the  fact,  and  stabs  B  :  this  is 
"manslaughter  of  the  lowest  degree."  ' 


IN  the  "  Epistle  Dedicatory "  to  the  book  en- 
titled "Some  Considerations  Toucliing  the 
Style  of  the  Holy  Scriptures,"  by  the  Honorable 
Robert  Boyle,  Esq.  4to,  1 675,  we  read  as  follows : 
"  It  is  not  always  so  despicable  a  piece  of  service 
as  may  be  imagined  to  endear  by  particular  con- 
siderations an  excellent  book  to  a  person  capable 
of  discovering  and  making  use  of  the  rare  things 
it  contains.  To  which  purpose  I  might  offer  you 
diverse  more  serious  instances,  but  shall  only  at 

1  Per  Watson  13.   in  Regina  v.  Davies,  Liverpool  Summer 
Assizes,  1857. 


ODDITIES   OF  THE  LAW.  171 

present  (a  little  to  divert  you)  take  this  occasion 
to .  tell  you  that  Ben  Jonson  passionately  com- 
plaining to  a  learned  acquaintance  of  mine  that  a 
man  of  the  long  robe,  whom  his  wit  had  raised  to 
great  dignities  and  power,  had  refused  to  grant 
him  some  very  valuable  thing  he  had  begged  of 
him,  concluded  with  saying,  with  an  upbraiding 
tone  and  gesture  to  my  friend :  '  TF/iy,  the  ungrate- 
ful ivretch  knows  very  tvell,  that,  before  he  came  to 
preferment,  I  was  the  man  that  made  him  relish 
Horace.''  Surely  this  is  very  characteristic. 
Boyle's  '  learned  acquaintance '  was  of  course 
Selden,  with  whom  he  is  known  to  have  been 
intimately  associated,  and  the  man  of  the  long 
robe  '  whose  wit  had  raised  him  to  great  dignities 
and  power,'  was  no  doubt  Jonson's  old  ally.  Sir 
Jolm  Davies,  the  Lord  Chief  Justice." 


"  rr^HE  right  to  a  trade-mark  is  a  right  closely 
-L    resembling,  though  not  exactly  the  same  as, 
copyright."  —  Per  Lord  Cranworth,  11  H.  L.  Cas. 
533. 

"^TTHERE  the  rigor  of  law  borderetli  upon 
»  '      injustice,  mercy  should,  if  possible,  inter- 
pose in  the  administratidn."^ 

1  Works  of  T{(;n  Jonson,  vol.  I.  p.  ix.  0(1.  Ciiniiin^jhaiu. 

2  Foster,  Diac.  Horn.  'H'A,  and  Disc.  High  Troas.  Iii4. 


172  ODDITIES   OF  THE  LAW. 


^V 


»  /  HEX  counsel  were  disputijig  sharpl}"  in 
the  Dean  of  St.  Asaph's  case  a  piece  of  evi- 
dence, one  of  them  saying,  "We  can  prove  this  to 
be  the  prosecutor's  letter,"  and  the  other  retorting, 
"  I  beg  leave  to  say  you  cannot,  it  is  not  evidence," 
Lord  Kenyon  interposed,  with  a  sort  of  learned 
charm,  "  modus  in  rebus,  there  must  be  an  end  of 
things."  These  bits  of  classicality,  sometimes  as 
inapplicable  as  if  they  had  been  picked  up  at  ran- 
dom from  a  dictionar}-  of  quotations,  are  amusingly 
caricatured  in  that  miscellaii}-  of  legal  anecdotes, 
"  Westminster  Hall."  The  learned  lord  is  there 
represented  concluding  an  elaborate  charge  of  the 
jur}'  with  the  observation:  "Having  thus  discharged 
your  consciences,  gentlemen,  you  may  retire  to 
your  homes  in  peace,  with  the  delightful  conscious- 
ness of  having  performed  your  duties  well,  and 
may  lay  j-our  heads  upon  your  pillows  and  say, 
"  Aut  Csesar  aut  nullus.'  " 

On  another  occasion,  his  lordship,  wishing  to 
illustrate  in  a  strong  manner  the  conclusiveness  of 
some  fact,  ended  by  remarking  :  "  It  is  as  plain  as 
the  noses  on  your  faces,  — '  Latet  anguis  in 
herbal'"! 


"  TT  often  happens,"  said  Chief  Justice  Chapman 
J-  in  a  capital  trial,  "  that  experts  can  be  found 
to  testify  to  any  theory,  hoivever  absurd.''  ^ 

1  Townsend's  Lives  of  Twelve  Judges,  vol.  I.  pp.  78,  79. 

2  Trial  of  Samuel  M.  Andrews,  p.  256. 


ODDITIES   OF  THE  LAW.  173 

IX  the  case  of  Tynte  v.  The  Queen,  7  Q.  B.  216, 
judgment  was  reversed  on  error,  after  a  lapse 
of  one  hundred  and  sixteen  j'ears.^ 


THE  constant  publication  of  cases  in  support 
of  clear  law  is  excessively  tiresome,  and  irre- 
sistibly calls  to  mind  the  amusing  colloquy  in 
"  Much  Ado  About  Nothing :  "  — 

Don  Pedro.  —  I  think  this  is  your  daughter. 
Leonato.  —  Her  mother  hath  many  times  told 
me  so. 

Benedick.  —  Were  you  in  doubt,  sir,  that  you 
asked  her  so  often  ? 

1.  This  was  a  writ  of  error  brought  to  reverse  a  judgment  of 
outlawry  against  Philip,  Duke  of  "Wharton. 

It  apiK-ared  that  the  Duke  of  AVlmrton,  by  his  will,  made  a 
few  weeks  before  his  death,  an<l  jiroved  in  the  Prerogative  Court 
of  Dublin,  Dec.  7,  ll'Mi,  left  all  his  goods,  effects,  and  worldly 
substance,  to  the  then  duchess,  his  second  wife,  and  ordered  that 
the  following  inscriptions  should  be  engraven  on  a  stone,  to  be 
fixed  upon  his  burial  place,  — 

"  Vixi,  et  quam  dc-dcrat  cursum  fortuna  perciji : " 
"  Tliy  fame  shall  live  when  pyramids  of  pride 
Mix  wilL  the  ashes  they  were  raised  to  hide :  " 

thus  exhibiting  to  the  end  of  his  life  the  "  ruling  passion,"  "  lust 
of  praisf,"  by  which  Pope  has  chariicterizfKl  him  in  the  Epistlo 
to  Lord  Cobhain.  Ills  treason  against  George  the  Second,  a  fact 
hardlj'  inijiortant  enough  for  history,  is  kept  in  ren)(Mnbran<<!  by 
the  "Moral  Essay"  of  the  satirist,  and  by  the  epigratiiinatin 
notifi;  of  Philip,  Duke  of  "Wharton,  in  Walpole'a  "  Catalogue  of 
Iloyal  and  Noble  Authors." 


174  ODDITIES   OF  TUE  LAW. 

nr^HERE  is  a  natural  standing  court  within  us, 
-L  examining,  acquitting,  and  condemning  at 
the  tribunal  of  ourselves,  wherein  iniquities  have 
their  natural  thetas,^  and  no  nocent  ^  is  absolved 
by  the  verdict  of  himself.  And  although  our 
transgressions  shall  be  tried  at  the  last  bar,  the 
process  need  not  be  long ;  for  the  Judge  of  all 
knoweth  all,  and  every  man  will  nakedly  know 
himself;  and  when  so  few  are  like  to  plead  not 
guilty,  the  assize  must  soon  have  an  end.^ 


A  PRISONER  being  called  on  to  plead  an  in- 
dictment for  larceny  was  told  by  the  clerk 
to  hold  up  his  right  hand.  The  man  immediately 
held  up  his  left  hand.  "  Hold  up  your  right 
hand,"  said  the  clerk.  "  Please  your  Honor,"  said 
the  culprit,  still  keeping  up  his  left  hand,  "  I  am 
left-handed.'''' 

IN  truth,  as  was  said  by  Chief  Justice  Wilmot, 
"  the  common  law  is  nothing  else  but  statutes 
worn  out."  * 

1  A  theta  inscribed  upon  the  judge's  tessara,  or  ballot,  was  a 
mark  for  death,  or  capital  condemnation. 

2  Judice  nemo  nocens  absolvitur.  —  Jtrv.  Sat.  XIII.  2,  3. 

3  Sir  Thomas  Browne,  Christian  Morals,  vol.  IV.  pp.  G9,  70, 
ed.  Pickering. 

i  Collins  V.  Blantern,  2  VTils.  341,  quoted  by  Willes,  J.,  in 
Pickering  v.  Ilfracombe  Railway  Co.  L.  R.  3  C.  P.  250. 


ODDITIES   OF  THE  LAW.  175 

THE  precise  time  when  the  system  of  reporting 
began  cannot  now  be  ascertained.  Sir  John 
Davies.  in  the  preface  to  his  Reports,  thinks  that 
although  those  in  print  and  those  scattered  in  the 
Abridgments  were  not  found  higher  than  the  time 
of  Henr}'  III.,  "yet  assuredly  there  were  other 
Reports  digested  in  3-ears  and  terms  as  ancient  as 
the  time  of  King  William  the  Conqueror."  He 
does  not  pretend  to  more  than  a  conjecture  ;  and 
when  Chaucer,  in  the  Prologue  to  the  Canterbury 
Tales,  says  of  the  Sergeant,  — 

"  In  tearmes  he  case  and  domes  all 
That  from  the  time  of  King  William  was  fall,"  — 

it  is  not  to  be  inferred  that  he  vouches  for  the 
existence  of  Reports  of  such  an  early  date :  he  is 
onl}^  magnifying  the  learning,  and  swelling  the 
number  of  accomplishments,  of  the  character  which 
he  is  describing.  The  existence  at  any  time  of  a 
continuous  series  of  Reports  from  the  time  of  the 
Conquest  is  not  probable.^ 


rj^III-^  intrinsic  weakness  of  liearsay  evidence  is 
-L    one  of  the  reasons  why  it  is  inadinissihlc. 

riuris  est  oculatns  testis  nniis,  qiiam  aiiriti  decern  ; 
Qui  audiiHit,  audita  dicunt,  ([ui  vident,  i)lane  sciuut. 

I'l.ADT.  TrucH.  act  ii.  so.  (5,  11.  S,  9. 

1  Preface  Year  Books,  :!0  &  ."U  Kilwiinl  I.  jp.  xvi. 


176  ODDITIES   OF  THE  LAW. 

IN  the  case  of  Day  v.  ]Micoii,  18  Wallace,  156, 
the  plaintiff  in  error  claimed  certain  estate 
formerly  owned  by  Hon.  Judah  P.  Benjamin,  and 
purchased  at  a  sale  under  the  confiscation  act  by 
Mr.  Da}',  who  argued  his  own  cause  before  the 
Supreme  Court  of  the  United  States.  His  original 
brief  was  in  the  ordiiiar\'  form,  presenting  iiolliiiig 
unusual,  perhaps,  except  the  Greek  verse  with 
which  it  concluded.  But  before  the  cause  came 
on  for  hearing,  Mr.  Day  prepared  a  preliminary 
page,  Avhich  he  had  bound  up  with  his  brief,  in 
calf,  in  which  he  moved  to  strike  out  the  opening 
sentence  :  "  This  is  a  writ  of  error  to  the  Supreme 
Court  of  Louisiana,"  and  substitute  the  following, 
which  is  literally  copied,  preserving  capitals,  ital- 
ics, etc. : — 

"May  it  please  the  Court:  When  'The 
Bonnie  Blue  Flag' went  down  before  '  The  Star 
Spangled  Banner,'  and  that  glorious  emblem  of 
'Tlie  Union,  the  Constitution,  and  tlie  Enforce- 
ment of  the  Laws'  again  waived  in  triinnph 

'  From  ^Maine's  dark  pines  and  crags  of  snow 
To  ^\•llere  magnolia  breezes  blow,' 

it  was  fondly  hoped  tliat  civil  strife  and  conten- 
tion were  at  an  end,  and  that  peace,  quiet  and 
repose  had  returned  to  bless  the  land.  But  these 
were 

•Hopes  Avhich  but  allured  to  fly;' 


ODDITIES   OF  THE  LAW.  177 

they  were,  indeed,  but 

'  Joys  that  vanished  while  we  sipp'd.' 

For  scarce!}'  had  the  roar  of  artillery  ceased,  aud. 
the  smoke  of  the  battle  cleared  off,  and  scarcely 
had  the  ink  become  dry  on  the  parchments  of 
Pardon,  which  fell  from  the  Executive  hand 

'  Thick  as  the  autumnal  leaves  that  strew  the  brooks 
In  Vallombrosa,' 

before  some 

'  of  the  last  few  who,  vainly  have,* 

and  Avho  would  theoreticall}',  merely, 

'Die  for  the  cause  they  could  not  save,' 

rushed  info  the  Courts,  reneived  the  contest  in  another 
fornix  and  we  are  here  to-day  on  a  writ  of  error  to 
tlie  Supreme  Court  of  Louisiana  to  reverse  a  vic- 
tory obtained  in  this  neio  mode  of  hostility  and 
attack  upon  the  power  and  authority  of  the  United 
States,  and  the  rights  of  one  firmly  based  upon 
the  same." 

After  listening  to  so  many  of  the  plaintiffs 
ideas  as  the  limited  time  allowed  him  to  ventilate, 
the  Court  declined  to  hear  argument  from  the  de- 
fendant,' and  affirmed  the  judgment  of  the  Supreme 
Court  of  Louisiana. 

»  18  Wallace,  IGO. 


178  ODDITIES   OF  THE  LAW. 

LORD  ELDON  once  judicially  observed  that  a 
certain  distinction  appeared  to  him  "  to  be  too 
tUnr  ' 


"  rr^O  give  every  man  his  due,"  wrote  Lord  Ba- 
-L  con,  "  liad  it  not  been  for  Sir  Edward  Coke's 
Reports  (wliich  thongh  they  may  liave  errors,  and 
some  peremptory  and  extra-judicial  resolutions 
more  than  are  warranted,  yet  they  contain  infinite 
good  decisions  and  rulings  over  of  cases),  the  law 
by  this  time  had  been  almost  like  a  ship  without 
ballast;^  for  that  the  cases  of  modern  experience 
are  fled  from  those  that  are  adjudged  and  ruled  in 
former  time."  ^ 

LORD  DENMAN,  C.  J.,  once  said :  « I  remem- 
ber an  action  tried  before  Gibbs,  C.  J.,  brought 
against  Alderman  Wood  by  a  man  whom  he  had 
sentenced  to  be  imprisoned  ;  and  it  was  contended 
that  the  imprisonment  was  illegal,  because  the 
sentence  did  not  also  direct  that  he  should  be 
whipped."  Gibbs,  C.  J.,  said  to  the  juiy:  "Give 
the  plaintiff  the  full  damages  he  has  sustained  by 
reason  of  not  having  been  whipped."  '^ 

1  Ex  parte  Kensington,  2  V.  &  B.  79,  84,  cited  in  1  Jones  on 
Mortgajjcs,  §181  note. 

2  It  lias  been  said  that  the  bulk  of  our  ballast  has  now  well 
nigh  sunk  tlie  vessel  of  justice. 

3  Bacon,  Works,  vol.  XIII.  p.  (i5,  cd.  Spedding. 
*  Whitehead  v.  The  Queen,  14  L.  J.  :M.  C.  IGG. 


ODDITIES   OF  THE  LAW.  179 

AVERY  ngly  old  barrister,  arguing  a  point 
of  practice  before  Plunket,  claimed  to  be 
received  as  an  authority.  "  I  am  a  pretty  old 
practitioner,  my  lord."  —  "  An  old  practitioner, 
Mr.  S.,"  was  Plunket's  correction. 


TTTALPOLE,  in  his  "Royal  and  Noble  Au- 
V  »  thors,"  speaks  of  Lord  Somers  as  "  One  of 
those  divine  men,  who,  like  a  chapel  in  a  palace, 
remain  unprofaned,  while  all  the  rest  is  tyranny, 
corruption,  and  folly." 


THE  classics  illustrate  and  embellish  the  Com- 
mentaries of  Kent.  In  vol.  III.  p.  234  note, 
is  this  passage  :  "  Emerigon,  I.  609,  has  beautifully 
illustrated,  from  Juvenal,  the  growth  and  progress 
of  an  irregular  jettison,  and  that  imminent  danger 
and  absorljing  terror  which  justify  it.  At  first  the 
bkill  of  the  pilot  fails :  — 

iiullain  i)rudentia  caui 
Rectoris  conferret  opein. 

Catullus  becomes  restless  with  terror  as  the  danger 
])resses,  and  at  last  lie  cries :  — 

FundiU',  qiUL'  inoa  .sunt,  dicdiat,  ciincta,  Catullus 
rr.Tcij)itare  volons  etiaia  pulcheniiua,  vostcm 
Purj^ureum." 


180  ODDITIES   OF  THE  LAW. 

THE  Term  Reports,  when  tliey  use  the  very  Ian- 
guage  of  Lord  Kenyon,  often  contain  a  series 
of  brolven  metapliors.  For  example:  "If  an  indi- 
vidual can  break  doivn  any  of  '  those  safeguards 
which  the  Constitution  has  so  wisely  and  so  cau- 
tiously erected,  by  poisoning  the  minds  of  the  jury 
at  a  time  when  they  are  called  upon  to  decide,  he 
will  stah  the  administration  of  justice  in  its  most 
vital  parts."  * 

AN  Irishman  was  once  brought  up  before  a 
magistrate,  charged  with  marr}- ing  six  wives. 
The  magistrate  asked  him  how  he  could  be  so 
hardened  a  villain.  "  Please,  your  worship,"  says 
Paddy,  "  I  was  trying  to  get  a  good  one'' 


A  STRANGER  to  law-courts,  hearing  a  judge 
call  a  sergeant  "  brother,"  expressed  his  sur- 
prise. "  Oh ! "  said  one  present,  "they  are  brothers, 
—  brothers-in-laiv." 

ONE  witness,  of  his  own  knowledge,  and 
another  of  hearsay  from  him,  though  at  the 
third  or  fourth  hand,  are  two  sufficient  witnesses 
in  high  treason. ^ 

1  Townseml's  Lives  of  Twelve  Judges,  vol.  I.  p.  79. 

2  Marginal  note  to  Thomas's  Case,  Dyer,  99  b,  quoted  in  Philli- 
more  Ev.  136. 


ODDITIES   OF  THE  LAW.  181 

LORD  COKE,  in  half  a  page,  on  the  subject  of 
the  Court  of  Chivalr}-,  quotes  extracts  from 
Lucan,  Tacitus,  Seneca,  Cicero,  Sallust,  Aristotle, 
Vegetius,  Lipsius.^  As  a  specimen  of  his  quota- 
tion, in  treating  of  the  Courts  of  the  Forest,-  he 
writes :  '•  And.  seeing  we  are  to  treat  of  game  and 
hunting,  let  us  (to  the  end  we  may  proceed  the 
more  cheerfully)  recreate  ourselves  with  the  excel- 
lent description  of  Dido  ;  that  Doe  of  the  Forest, 
wounded  with  a  deadly  arrow  stricken  in  her,  and 
not  impertinent  to  our  jjurpose."  He  then  quotes 
six  lines,  beginning,  — 

Uritur  iiifelix  Dido,  totuque  vagatus 

Urbe  furens,  qualis  conjecta  ceiva  sagitta,  etc. 


ACCURACY  is  the  first  duty  of  a  reporter; 
clearness  is  another  ;  brevity  is  also  essential. 
To  convey  the  fullest  information  in  the  least 
space  is,  therefore,  one  canon  of  reporting.  To 
borrow  the  quaint  language  of  Sydney  Smith,  the 
rcjiorter  "should  think  upon  Noah  and  the  ark, 
and  be  brief.  The  ark  should  constantly  remind 
him  of  the  little  time  tliere  is  left  for  reading ;  and 
lie  sliould  learn,  as  they  did  in  the  ark,  to  crowd  a 
great  deal  of  matter  into  a  very  little  space." 

1  He  says,  "to  cite  vcrsea  standctli  well  with  tlic  gravitie  of 
our  lawyers." 
a  4  Iiuit.  28D. 


182  ODDITIES   OF  THE  LAW. 

IT  has  been  said  of  Blackstone's  Commentaries, 
that  they  have  been  so  often  patched,  that  they 
will  soon  resemble  Sir  John  Cutler's  silk  stockings, 
from  which  every  particle  of  silk  had  been  dis- 
placed by  darnings  of  worsted. 


A  LEARNED  jndge  being  asked  the  difference 
between  law  and  equit}-  courts,  replied  :  "  At 
common  law  you  are  done  for  at  once  ;  at  equity 
you  are  not  so  easily  disposed  of.  One  is  prussiG 
acid,  and  the  other  laudanum. 


A  CUNNING  jurj-man  addressing  the  clerk 
-^^^  of  the  court  when  administering  the  oath, 
said,  "  Speak  up  :  I  cannot  hear  what  you  say."  — 
"Stop:  are  you  deaf?"'  asked  Baron  Alderson. 
"  Yes,  of  one  ear."  —  "  Then  you  may  leave  the 
box ;  for  it  is  necessary  that  jurymen  should  hear 
both  sides. ''^ 


"  "TTXHEN  a  man  is  taken  in  adultery  with 
'  »  another  man's  wife,  if  the  husband  shall 
stab  the  adulterer,  or  knock  out  his  brains,  this  is 
bare  manslaughter;  for  jealousy  is  the  rage  of  a 
man,  and  adultery  is  the  highest  invasion  of  ])rop- 
ertyy  ^ 

1  Regina  v.  Mawgridge,  Kel.  137;  186,  3d  ed. 


ODDITIES   OF  THE  LAW.  183 


SPECIMEN  OF   SCEIBLERUS'S   REPORTS. 

STRADLING  V.  STILES.'' 

Le  report  del  ease  argue  en  le  comraen  banke  devant 
touts  les  justices  tie  le  luesme  banke,  en  le  quart. 
An.  du  raygne  de  ro\'  Jaques,  entre  Mattheio  Strad- 
ling,  plant.  &  Peter  Stiles^  def.  en  un  action  propter 
certos  equos  coloratos,  Anglice,  pgctj  j^orSfS,  post. 
f)er  le  dit  Mattheio  vers  le  dit  Peter. 

S3E  John  Swale,  of  Swale-Hall  m  .     -  •,  ,  ^  , 

'  Le  recitel  del 

Swale-Dale  fast  bg  tlje  Ei'ber  Swale,  kt.  ^"''**-"- 
iitatif  ])i%  last  W^iW  anti  STestanunt :  m  irii)icl|,  amancf 
otljcr  Bequests  irias  tlji's,  viz.  Out  of  the  kind  luve 
and  respect  that  I  bear  unto  m}-  much  honoured 
and  good  friend  ]\Ir.  Mattlieiv  StradUng,  gent.  I  do 
bequeath  unto  the  said  3fattheto  /StradUnr/,  all  my 
black  and  white  horses.  OTj^e  QTcstator  ^aH  &ix  black 
Ijorscs,  st'i  Jnfjt  c  Ijorscs,  anti  st'x  pocli  \)axS£S. 

(L\)c  Debute  tbcrcfore  irias,  OEbetljer  or  no 
tlje  saili  Matthew  Stradling  sljoultj  Ijabe     "  ^'°'"  ' 
tf)£  saiti  puet)  Ijorscs  bg  bi'ttue  of  tlje  saili  Bequest. 

Atkins   apprentice    pour  le   pi.   moo 
scmble  que  le  pi.  recobera.  ^""^  *"  ^' ' 

1  The  exquisite  burlesque  on  the  old  Reports  entitled  "  Strad- 
ling v.  Stiles"  is  often  erroneously  attributed  to  Swift  and  Dr. 
Arbuthnot;  but  it  seems  really  to  have  been  the  joint  eoiiiposi- 
tioii  of  Pope  and  Mr.  Forteseue  (afterwards  in  IT.'iG  made  a  IJaron 
of  the  Exchequer),  and  who  was,  says  Sir  Waiter  Scott,  "  thoin/h 
a  lawyer,  a  man  of  great  humor,  talents,  and  iiUtijnly."  ttwiXt, 
"Works,  vol.  xiii.  p.  1^8,  ed.  Scott. 


184  ODDITIES   OF  THE  LAW. 

^nt(  first  of  all  ft  sccmctfj  crpctitcnt  to  ronsiticr  toTjat  fs 
tfje  nature  of  horses,  nnti  also  inijat  is  tlje  nature  of 
colours ;  antJ  00  t|)c  argument  int'll  ronsfqucntig  tiibt'liE 
ttscif  in  a  ttoofolli  iuag,  tf)at  is  to  sag,  i\jz  formal  part, 
mxb  substantial  i)art.  Horses  are  tj^e  substantial 
part,  or  tljing  farqiiratfjcti :  black  and  white  tf)e  formal 
or  tiesrriptiiie  part. 

Horse,  in  a  pljgsi'ral  sense,  tiotfj  import  a  certain 
quadru[)ede  or  four-footed  aidmal,  which,  by  the 
apt  and-  regular  disposition  of  certain  proper  and 
convenient  parts,  is  adapted,  fitted,  and  consti- 
tuted, for  tlie  use  and  need  of  man.  |3ea  so  neecs= 
sarg  anir  contiuetbe  toas  tf)ts  animal  eonceibcti  to  hz  to  tfje 
ieljoof  of  tf)c  rommontocal,  tfjat  suntirg  anti  titbcrs  acts  of 
ParU'amcnt  {jabc  from  time  to  time  been  matie  in  favour 
of  horses. 

1st  Edw.  VI.  iHakes  tljc  transportintj  of  horses  out 
of  tlje  iu'nijliom  no  less  a  penaltg  tfjan  tfje  forfeiture  of 
^40. 

2nd  and  3rd  Edward  VI.  STal^es  from  horse-stealers 
t|^c  benefit  of  tljeir  elergg. 

And  the  statutes  of  the  27th  and  32nd  of  Henry 
VIII.  conticscent!  so  far  as  to  take  earc  of  tfjeir  berg 
breed :  STfjese  our  toise  ancestors  pruticntlu  forrsecinrj, 
tljat  tljeg  coulti  not  better  take  care  of  tijeiv  oton  postcritg, 
tJ)an  bg  also  taking  care  of  t|)at  of  tf)cir  horses. 

Snlj  of  so  great  esteem  are  horses  in  tijc  cue  of  tlje 
common  lafaj,  tbat  boljcn  a  Knight  of  the  Bath  commit^ 
tetlj  ang  great  anti  enormous  crime,  j^is  punisljmcnt  is  to 


ODDITIES   OF  THE  LAW.  185 

f)abc  fji's  spurs  cliopt  off  with  a  cleaver,  hdwQ,  as 
master  Bracton  liiell  ofascrfactf),  unworthy  to  ride  on 
a  horse. 

Littleton,  Sect.  315,  saith,  M  tmants  in  common 
make  a  lease  rescrbt'ng  foe  rent  a  horse,  tijeu  sljall  fjabe 
but  one  assise,  because,  saith  the  book,  t|^e  lain  iatll  not 
suffer  a  horse  to  be  severed.  Snotljer  argument  of 
bjjjat  ijigi)  estimation  tijc  Iain  maketfj  of  an  ijorse. 

But  as  tfje  great  tiilTerence  seemetf)  not  to  be  so  mueti 
toucljing  tlje  substantial  part,  horses,  let  us  proeeeti  to 
t^c  formal  or  ticsrriptibe  part,  viz.  boljat  ijorscs  tfjeu  are 
tljat  come  initljin  tljis  Bequest. 

Colours  are  commonlo  of  various  kinds  and  differ- 
ent sorts ;  of  inljicl)  white  anl)  black  are  tlje  ttoo  ei- 
tremes,  ant  consequently  comprehend  within  them  all 
otlier  colours  whatsoever. 

Bg  a  bequest  tfjerefore  of  black  and  white  horses, 
grey  or  pyod  liorscs  may  well  pass;  for  iuljcn  tiaa 
eitrcmes,  or  remotest  cutis  of  ano  tijing  arc  ticbiseti,  tlje 
latci,  bv  common  intentiment,  toill  intent)  whatsoever  is 
contained  betAveen  tliem  to  be  devised  too. 

But  tfje  present  case  is  still  stranger,  coming  not  onlg 
toitbin  tlje  intentiment,  but  also  tlje  berg  letter  of  tljc 
ioortis. 

Bo  tljc  fajort)  bhick,  all  t^e  f)arse3  tfjat  arc  black  are 
devised;  bo  tlje  luorti  wliite  are  tiebiscti  tbosc  tljat  are 
wliite  ;  anti  bu  tlje  same  toort),  toitl)  tlje  conjunction  cop* 
ulatibe,  and,  betixicen  tljem,  tlie  horses  that  an;  black 
and  white,  tljat  is  to  sag,  pyed,  are  devised  also. 


186  ODDITIES   OF  THE  LAW. 

^SUfjatetjcr  is  black  and  white  I's  pyecl,  miii  iuljat* 
thn  is  P3'ecl  is  black  and  white  ;  ergo,  black  and 
white  IS  pyed,  nnti  vice  versa^  pyed  is  black  and 
white. 

Jf  t|)crcforc  black  and  white  horses  are  ttctiiSEti, 
pyed  horses  shall  pass  by  such  devise ;  but  black 
and  white  horses  are  devised;  ergo^  the  pi.  shall 
have  the  pyed  horses. 

Catlyne    §£rj£ant :    mog    semble    al'  rontrarg,    tfje 
plaintiff  shall  not  have  the  pyed  horses 

Pour  le  Defend.    ,  .  -  ,.         -,-    r         r  ,  ■  <. 

by  uitendment ;  for  if  bg  tije  tjcbtse  of 
black  and  white  horses,  not  onlg  black  nnti  iuljtte 
Ijorscs,  but  Ijorscs  of  ang  colour  bcttoecn  tljcsc  tiuo 
citrcnics  mag  pass,  then  not  only  pyed  and  grey 
horses,  but  also  red  and  bay  horses  would  pass 
likewise,  which  would  be  absurd,  and  ag'ainst 
reason,  ^nti  tijts  is  anotljcr  strong  argument  i\\  lain, 
Nihil^  quod  est  contra  rationem  est  llcltum;  for 
reason  is  the  life  of  the  law,  nag  tfjc  common  law  is 
nothing  but  reason  ;  baljiclj  is  to  be  unticrstooti  of  arti- 
ficial perfection  and  reason  gotten  bg  long  stutig,  anli 
not  of  man's  natural  reason ;  for  nemo  nascitur 
artifex^  and  legal  reason  est  summa  ratio  ;  antJ  tf)ere- 
fore  if  all  tl)e  reason  tljat  is  liispcrset)  into  so  mang 
tiiffcrent  Ijeatis,  toere  unitetJ  into  one,  Ijc  coulti  not  make 
sucl}  a  lato  as  tijc  lafa  of  England;  because  \i^  mang 
successions  of  ages  it  Ijas  been  fixcti  anlt  veft.rcti  bu  grabe 
anti  learneti  men ;  so  tljat  tfje  olb  rule  mag  be  berifieti  in 
it,  Neminem  oportet  esse  legibus  sapientiorem. 


ODDITIES   OF  THE  LAW.  187 

Ss  tfjcrefare  pyed  horses  tio  not  romc  im'tljiu  tl^e 
fntcntjmcnt  of  Hjc  bequest,  so  ncitf)cc  tia  t!)cu  luitlji'u  tfjc 
letter  iDf  tlje  toorts. 

91  l>3'ed  liorse  is  not  a  white  horse ;  neitf)cr  is  a 
P3-ed  a  bhick  horse  ;  \)aia  tijen  can  pyed  horses  come 
iinliEr  tfjc  tooibs  of  bhack  and  white  horses  ? 

Besi'lies,  toljere  custom  Ijatfj  atiapteti  a  ectiam  ticter= 
mi'nate  name  to  ano  one  tiling,  in  all  tiebises,  feoffments 
antj  grants,  that  certain  name  shall  be  made  use  of, 
and  no  uncertain  circumlocutory  descriptions  shall 
be  allowed ;  for  eertat'ntn  is  t^c  fat!)er  of  rffjl^t  anti  t\)Z 
niotljer  of  justt'ee. 

Le  rest  del  argument  jeo  ne  pouvois  oyer,  car 
jeo  fui  disturb  en  mon  place. 

3Le  court  fuit  longement  en  tioubt'  tie  c'est  matter ;  ct 
apres  grant)  tieliberatfon  eu, 

3utigmcnt  fui't  t(anne  pour  le  pi.  nisa  causa. 

Motion  in  arrest  of  judgment,  t^at  tl^e  pyed 
horses  were  mares  ;  anlj  tljereupon  an  inspection  was 
jirayed. 

3Et  sur  ceo  le  court  advisare  vult. 


"TTT^IIEN  Baron  Martin  was  at  the  Bar,  and 
»  »  addressing  the  Court  of  Exchequer  in  an 
insurance  case,  he  was  interrupted  by  Baron  Al- 
(h.'i'son  observing,  "Mr.  Martin,  do  you  tliink  any 
office  would  insure  your  life '/  Keniembcr,  yours 
is  a  brief  existence." 


188  ODDITIES   OF  THE  LAW. 

ALBEIT  beginnings  of  this  stndy  seem  diffi- 
cult, yet  when  the  professor  of  the  law  can 
dive  into  the  depth,  it  is  delightfull,  easie,  and 
without  any  heavy  burthen,  so  long  as  he  keepe 
hhnselfe  in  his  own  proper  element.  —  Co.  Litt. 
71a. 


MR.  JUSTICE  GOULD  was  trying  a  case  at 
York,  and  when  he  had  proceeded  for  about 
two  hours,  he  observed :  "  Here  are  only  eleven 
jurymen  in  the  box  :  where  is  the  twelfth  ?  "  — 
"Please  you,  my  lord,"'  said  one  of  the  eleven, 
"  he  has  gone  away  about  some  other  business ; 
hut  he  Juts  left  Jus  verdict  ivith  me  !  " 


MR.  JUSTICE  PUTXA:\I,  in  considering  the 
subject  of  the  conclusiveness  of  judgments, 
remarked,  that,  if  the  principle  were  otherwise, 
"The  law  would  become  a  game  of  frauds,  in 
which  the  ecreatest  roGfue  would  become  the  most 
successful  player."  ^ 

— •-•— • — 

HURRAH  !  Hurrali !  "  cried  a  young  lawyer 
who  had  succeeded  to  his  father's  practice, 
"  I've  settled  that  old  Chancery  suit  at  last."  — 
"  Settled  it !  "  cried  the  astonished  parent,  "  why,  I 
gave  you  that  as  an  annuity  for  your  life." 
1  M'Kae  v,  Mattoou,  13  Pick.  58. 


ODDITIES   OF  TUE  LAW.  189 

"  /^  OSTS  as  between  i^artj'  and  i^art}'  are  given 
^^  by  the  law  as  an  indemnity  to  the  person 
entitled  to  them :  they  are  not  imposed  as  a  pun- 
isliment  on  the  party  who  pays  them,  nor  given  as 
a  bonus  to  the  party  who  receives  them."  ' 


HEXRY  FOX,  in  a  liot  attack  on  Lord  Chan- 
cellor Hardwicke,  wlio  was  supposed  to  have 
no  desire  to  reform  the  many  abuses  of  liis  office, 
exclaimed :  "  Touch  but  a  cobweb  in  AYestminster 
Hall,  and  the  old  spider  of  the  Law  is  out  upon 
you  with  all  his  vermin  at  his  heels."  ^ 


THE  person  of  Lord  Ellesmere  is  described  as 
remarkable  for  its  venerable  gravity,  and 
many  went  to  the  Court  of  Chancery  to  see  him 
in  his  '•  pomp  and  circumstance  ; "  on  wliich  Fuller 
quaintly  observes,  "happy  they  who  had  no  other 
business  there ! " 


THE  old  English  lawj-ers  occasionally  rejected 
the  evidence  of  women  on  the  ground  that 
they  live  frail? 

»  P(;r  IJraiiiwcll,  B.,  in  Harold  v.  Siiiitli,  n  If.  &  N.  385. 
2  Tli«;  Xortli  Aiiiorican  Review,  July,  IK'A,  p.  151. 
8  Best  Ev.  §  ()4,  eitiug  Fitzli.  Abr.  Villeuage,  pi.  o7.    Bro.  Abr. 
Tcstinoigucs,  yl.  '.iO. 


190  ODDITIES   OF  THE  LAW. 


DISCRETIO  est  discernere  j)er  legem  quid  sit 
justum.  —  4  List.  41.' 


THE  case  of  State  v.  Neely,  74  N.  C.  425, 
shows  wliat  evidence  is  sufficient  in  the 
opinion  of  the  majority  of  the  Court  to  convict  a 
negro  of  an  assault  w^ith  attempt  to  commit  a  rape. 
The  dissenting  opinion  of  Mr.  Justice  Rodman  is 
entertaining,  and  quite  as  convincing  as  that  of 
the  majority  of  the  Court. 


MA  JUS  dignum  trahit  ad  se  minus  dignum.  — 
1  Inst.  43  b.  An  adulterer  takes  the  wife 
of  another  man,  and  new  clothes  her ;  the  husband 
may  take  with  his  wife  the  clothes  on  her  back.^ 


I 


T  is  felony  in  the  sheriff  to  behead  one  who  was 
sentenced  to  be  hano-ed.'^ 


T 


HE  Almanac  is  part  of  the  law  of  England.* 


1  Quoted  by  Tindal,  C.  J.,  in  Regiua  v.  Darliugtou,  G  Q.  B.  700. 

2  Year  Book,  11  Henry  IV.  4,  31. 

3  Year  Book,  35  Henry  VI.  58. 

4  Per  Pollock,  C.  B.,  in  Tutton  v.  Dark,  5  H.  &  N.  6i7.    6 
Mod.  41.    G  Mod.  81. 


ODDITIES   OF  THE  LAW.  191 

THE  Commentary  of  Lord  Coke  upon  Littleton 
will  be  admired,  says  Fuller,  "by  judicious 
j)osterity  -while  Fame  has  a  trumpet  left  her,  and 
any  breath  to  blow  therein." 


BRITTAIN  V.  KINNAIRD,  1  B.  &  B.  432. 
"  This  case  has  come  to  be  the  locus  classicus 
of  Sir  J.  Richardson."  ^ 


IX  a  trial  at  the  Newcastle  assizes,  before  Mr. 
Justice  Bayley  against  a  blacksmith  for  a 
nuisance,  the  plaintiff's  daughter,  a  sprightly  girl, 
stated  that  the  sparks  came  in  at  the  window  of 
her  bedroom.  Sergeant  Hullock,  in  cross-exami- 
nation, retorted :  "  Nay,  where  so  pretty  a  girl  is, 
don't  they  oftener  come  in  at  the  door?" 


OIR  JAMES  DYER,  in  liis  Reports,  after 
^-^  stating  the  oi)inion  of  himself  and  some  of 
liis  brothers,  concludes,  not  very  urbanely :  "But 
Baldwin  was  of  a  contrary  ojjinion  ;  thougli  neither 
I,  nor  any  one  else,  I  believe,  understood  his  refu- 
tation." 2 

1  Per  Lord  Coleridge,  C.  J.,  ia  Usill  v.  Hales,  47  L.  J.  C.  P.  320. 
a  1  Dyer,  43  a. 


192 


ODDITIES   OF  THE  LAW. 


"TTTE  will  conclude  this  volume  with  a  single 

T  ▼      Pensee  from  Joubert :  — 

Only  just  the  right  quantum  of  wit  should  be 
put  into  a  book:  in  conversation,  a  little  excess  is 
allowable.  "  And  for  a  farewell  to  our  jurispru- 
dent," in  the  language  of  Lord  Coke,  "  I  wish  unto 
him  the  gladsome  light  of  jurisprudence,  the  love- 
linesse  of  temperance,  the  stabilitie  of  fortitude, 
and  the  soli-ditie  of  justice." 


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